CELEX: C2003/146/29
Language: en
Date: 2003-06-21 00:00:00
Title: Case C-107/03 P: Appeal brought on 27 February 2003 by fax, confirmed by the original lodged on 7 March 2003, by The Procter & Gamble Company against the judgment delivered on 12 December 2002 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-63/01 between The Procter & Gamble Company and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

21.6.2003               EN                          Official Journal of the European Union                                         C 146/17
The appellant claims that the Court should:                                       In addition, the Court of First Instance did not apply the
                                                                                  interdependence rule clearly. The Court of First Instance
                                                                                  did not raise the point that the claimed low degree of
—     set aside the judgment of the Court of First Instance of                    similarity between the marks was not offset by the high
      12 December 2002 in Case T-110/01 and accordingly                           degree of similarity between the goods and the strongly
                                                                                  distinctive character of the applicant’s trade mark.
      —     acting pursuant to Article 54 of the Statute of the
                                                                                  Finally, the Court of First Instance infringed the concept
            Court of Justice, give final judgment in the matter,
            granting the forms of order sought by the applicant                   of ‘likelihood of confusion’ by limiting the public con-
            before the Court of First Instance;                                   cerned to the ‘targeted public’, the latter comprising only
                                                                                  consumers likely to acquire the marked goods, whereas
                                                                                  the public concerned consists of all persons likely to be
      —     in the alternative: refer the case back to the Court of               confronted with the mark, which is very different.
            First Instance for judgment;
                                                                            (1 ) Council Regulation (EC) No 40/94 of 20 December 1993 on the
—     in any case: order OHIM to pay the costs.                                  Community trade mark (OJ L 11, 14.1.1994, p. 1).
Pleas in law and main arguments
—     Plea alleging breach of the ‘principle of party disposition’
                                                                            Appeal brought on 27 February 2003 by fax, confirmed
      The ‘principle of party disposition’ is a general principle           by the original lodged on 7 March 2003, by The Procter
      of law under which the parties exercise, in principle, sole           & Gamble Company against the judgment delivered on
      control over legal proceedings. It is they who delimit the            12 December 2002 by the Fourth Chamber of the Court
      subject-matter of the dispute. The Court of First Instance            of First Instance of the European Communities in Case
      certainly acted in breach of the ‘principle of party                  T-63/01 between The Procter & Gamble Company and
      disposition’ by holding, contrary to the agreement of the             the Office for Harmonisation in the Internal Market
      parties on this point, that there was no similarity between                         (Trade Marks and Designs) (OHIM)
      the conflicting trade marks.
                                                                                                     (Case C-107/03 P)
—     Plea alleging breach of the right to a fair hearing
      The Court of First Instance also acted in breach of the                                         (2003/C 146/29)
      right to a fair hearing since it undermined the applicant’s
      legitimate expectation as to the delimitation of the
      dispute.
                                                                            An appeal against the judgment delivered on 12 December
—     Plea alleging infringements of the concept of ‘likelihood             2002 by the Fourth Chamber of the Court of First Instance of
      of confusion’ and the concept of ‘public’ within the                  the European Communities in Case T-63/01 between The
      meaning of Article 8(1)(b) of Regulation No 40/94 (1)                 Procter & Gamble Company and the Office for Harmonisation
                                                                            in the Internal Market (Trade Marks and Designs) (OHIM)
      The contested judgment rules out the likelihood of                    was brought before the Court of Justice of the European
      confusion on the ground that the public ‘will not                     Communities on 27 February 2003 by fax, confirmed by the
      attribute the same commercial origin to the goods in                  original lodged on 7 March 2003, by The Procter & Gamble
      question’. However, a likelihood of confusion also exists             Company.
      where the public may believe that the goods come from
      undertakings which are connected only economi-
      cally. Moreover, the Court of First Instance rejected any             The appellant claims that the Court should:
      likelihood of confusion on the ground that ‘even though
      there is identity and similarity between the goods covered
      by the conflicting marks, the visual, aural and conceptual            —     set aside the judgment of the Court of First Instance of
      differences between the signs’ mean that there is no                        12 December 2002 in Case T-63/01 and, in consequence
      likelihood of confusion, whereas the question is not                        thereof,
      whether there are differences between the conflicting
      marks, but whether there is identity or similarity between                  —     primarily: apply Article 54 of the Statute of the
      them and whether, considered as a whole with the                                  Court of Justice and give final judgment in the
      identity or similarity of the goods, the degrees of those                         matter, upholding the form of order sought by the
      similarities are such that there is a likelihood of confusion.                    appellant before the Court of First Instance;
 ---pagebreak--- C 146/18                EN                         Official Journal of the European Union                                        21.6.2003
      —     in the alternative: refer the case back to the Court of        Reference for a preliminary ruling by the College van
            First Instance for judgment;                                   Beroep voor het bedrijfsleven by judgment of that Court
                                                                           of 8 January 2003 in the case of KPN Telecom B.V. against
                                                                           Onafhankelijke Post en Telecommunicatie Autoriteit;
—     in any event: order OHIM to pay the costs.                           Interested parties: Denda Multimedia B.V. and Denda
                                                                                                Directory Services B.V.
                                                                                                     (Case C-109/03)
Pleas in law and main arguments
                                                                                                     (2003/C 146/30)
—     Plea alleging breach of the presumption that documents
      may be relied on or inconsistency in the grounds of the
      judgment:
      Contrary to what the Court of First Instance states, the             Reference has been made to the Court of Justice of the
      sign reproduced does not present any of the 24 rectangles            European Communities by order of the College van Beroep
      or any of the six parallelograms of which a rectangular              voor het bedrijfsleven (Administrative Court for Trade and
      parallelepiped consists.                                             Industry) of 8 January 2003, received at the Court Registry on
                                                                           10 March 2003, for a preliminary ruling in the case of KPN
                                                                           Telecom B.V. against Onafhankelijke Post en Telecommunica-
                                                                           tie Autoriteit; Interested parties: Denda Multimedia B.V. and
—     Plea alleging misconstruction of the concept of distinctive
      character:                                                           Denda Directory Services B.V. on the following questions:
      When it is necessary to determine whether a sign is                  1.    Is ‘relevant information’ in Article 6(3) of Directive 98/
      capable of fulfilling its function as an individual mark                   10/EC ( 1) to be interpreted as meaning only the numbers
      for specific goods or services, when the merits of an                      together with the name, address, town/city and postcode
      application for registration as an individual mark for                     of the person to whom the number has been issued and
      those goods and services are being examined, it is                         any entry as to whether the number is used (exclusively)
      necessary to reason in terms of the presumed perception                    as a fax line published by the organisations concerned or
      of the use which might be made of the sign and not in                      does ‘relevant information’ also cover other data at the
      terms of the actual perception of any actual use already                   disposal of the organisations such as an additional
      made of the sign. The Court of First Instance maintains                    entry relating to a profession, another name, another
      that the distinctive character of the sign must be assessed                municipality or mobile telephone numbers?
      in relation ‘to the perception of the relevant public’. In
      that regard, the relevant public consists of all persons
      likely to find themselves in the presence of the sign and            2.    Is ‘meet (...) reasonable requests (...) on terms which
      cannot therefore be reduced to the much more restricted                    are fair, cost oriented and non-discriminatory’ in the
      circle of consumers likely to acquire the goods or services                provision referred in Question 1 to be interpreted as
      which the sign is supposed to designate.                                   meaning that:
      Furthermore, the Court of First Instance indirectly but                    a)    numbers together with the name, address, town/city
      definitely misconstrued the concept of distinctive charac-                       and postcode of the person to whom the number
      ter when it failed to rule on whether or not the sign was                        has been issued must be made available for a
      incapable of distinguishing one bar of soap from another                         remuneration of only the marginal costs involved in
      as coming from a specific undertaking, but rather whether                        actually making them available, and
      the imperfect picture of that sign had such capacity.
      Last, the Court of First Instance misunderstood the                        b)    data other than those referred to in paragraph (a)
      concept of distinctive character by completely disre-                            must be made available for a remuneration intended
      garding the multifunctionality of signs. It is not because                       to cover the costs of what the provider of these data
      it might be presumed that, in the presence of the sign in                        shows he has incurred in obtaining or providing
      issue, the public will perceive above all or primarily a sign                    these data?
      that fulfils a technical or ornamental function that the
      performance of its function as an individual trade mark
      would be precluded or even reduced.
                                                                           (1 ) OJ L 101 [1998], p. 24.