CELEX: C2003/124/09
Language: en
Date: 2003-05-24 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)

24.5.2003               EN                        Official Journal of the European Union                                              C 124/5
Appeal brought on 27 February 2003 by fax, confirmed                            attribute the same commercial origin to the goods in
by original lodged on 7 March 2003, by Védial SA against                        question’. However, a likelihood of confusion also exists
the judgment delivered on 12 December 2002 by the                               where the public may believe that the goods come from
Fourth Chamber of the Court of First Instance of the                            undertakings which are connected only economi-
European Communities in Case T-110/01 between Védial                            cally. Moreover, the Court of First Instance rejected any
SA and the Office for Harmonisation in the Internal                             likelihood of confusion on the ground that ‘even though
Market (Trade Marks and Designs) (OHIM), the other                              there is identity and similarity between the goods covered
                 party being France Distribution                                by the conflicting marks, the visual, aural and conceptual
                                                                                differences between the signs’ mean that there is no
                         (Case C-106/03 P)                                      likelihood of confusion, whereas the question is not
                                                                                whether there are differences between the conflicting
                          (2003/C 124/08)                                       marks, but whether there is identity or similarity between
                                                                                them and whether, considered as a whole with the
                                                                                identity or similarity of the goods, the degrees of those
                                                                                similarities are such that there is a likelihood of confusion.
An appeal against the judgment delivered on 12 December
2002 by the Fourth Chamber of the Court of First Instance of                    In addition, the Court of First Instance did not apply the
the European Communities in Case T-110/01 between Védial                        interdependence rule clearly. The Court of First Instance
SA and the Office for Harmonisation in the Internal Market                      did not raise the point that the claimed low degree of
(Trade Marks and Designs) (OHIM), the other party being                         similarity between the marks was not offset by the high
France Distribution, was brought before the Court of Justice of                 degree of similarity between the goods and the strongly
the European Communities on 27 February 2003 by fax,                            distinctive character of the applicant’s trade mark.
confirmed by original lodged on 7 March 2003, by Védial SA.
                                                                                Finally, the Court of First Instance infringed the concept
                                                                                of ‘likelihood of confusion’ by limiting the public con-
The appellant claims that the Court should:                                     cerned to the ‘targeted public’, the latter comprising only
                                                                                consumers likely to acquire the marked goods, whereas
—     set aside the judgment of the Court of First Instance of                  the public concerned consists of all persons likely to be
      12 December 2002 in Case T-110/01 and accordingly
                                                                                confronted with the mark, which is very different.
      —     acting pursuant to Article 54 of the Statute of the
            Court of Justice, give final judgment in the matter,
                                                                          (1 ) Council Regulation (EC) No 40/94 of 20 December 1993 on the
            granting the forms of order sought by the applicant                Community trade mark (OJ L 11, 14.1.1994, p. 1).
            before the Court of First Instance;
      —     .in the alternative: refer the case back to the Court
            of First Instance for judgment;
—     in any case: order OHIM to pay the costs.
                                                                          Appeal brought on 27 February 2003 by fax, confirmed
Pleas in law and main arguments                                           by the original lodged on 7 March 2003, by The Procter
                                                                          & Gamble Company against the judgment delivered on
—     Plea alleging breach of the ‘principle of party disposition’        12 December 2002 by the Fourth Chamber of the Court
      The ‘principle of party disposition’ is a general principle         of First Instance of the European Communities in Case
      of law under which the parties exercise, in principle, sole         T-63/01 between The Procter & Gamble Company and
      control over legal proceedings. It is they who delimit the          the Office for Harmonisation in the Internal Market
      subject-matter of the dispute. The Court of First Instance                        (Trade Marks and Designs) (OHIM)
      certainly acted in breach of the ‘principle of party
      disposition’ by holding, contrary to the agreement of the                                    (Case C-107/03 P)
      parties on this point, that there was no similarity between
      the conflicting trade marks.
                                                                                                    (2003/C 124/09)
—     Plea alleging breach of the right to a fair hearing
      The Court of First Instance also acted in breach of the
      right to a fair hearing since it undermined the applicant’s
                                                                          An appeal against the judgment delivered on 12 December
      legitimate expectation as to the delimitation of the
                                                                          2002 by the Fourth Chamber of the Court of First Instance of
      dispute.
                                                                          the European Communities in Case T-63/01 between The
—     Plea alleging infringements of the concept of ‘likelihood           Procter & Gamble Company and the Office for Harmonisation
      of confusion’ and the concept of ‘public’ within the                in the Internal Market (Trade Marks and Designs) (OHIM)
      meaning of Article 8(1)(b) of Regulation No 40/94 (1)               was brought before the Court of Justice of the European
                                                                          Communities on 27 February 2003 by fax, confirmed by the
      The contested judgment rules out the likelihood of                  original lodged on 7 March 2003, by The Procter & Gamble
      confusion on the ground that the public ‘will not                   Company.
 ---pagebreak--- C 124/6                 EN                         Official Journal of the European Union                                         24.5.2003
The appellant claims that the Court should:                                      issue, the public will perceive above all or primarily a sign
                                                                                 that fulfils a technical or ornamental function that the
                                                                                 performance of its function as an individual trade mark
—     set aside the judgment of the Court of First Instance of                   would be precluded or even reduced.
      12 December 2002 in Case T-63/01 and, in consequence
      thereof,
      —     primarily: apply Article 54 of the Statute of the
            Court of Justice and give final judgment in the
            matter, upholding the form of order sought by the
            appellant before the Court of First Instance;                  Reference for a preliminary ruling by the College van
                                                                           Beroep voor het bedrijfsleven by judgment of that Court
      —     in the alternative: refer the case back to the Court of        of 8 January 2003 in the case of KPN Telecom B.V. against
                                                                           Onafhankelijke Post en Telecommunicatie Autoriteit;
            First Instance for judgment;
                                                                           Interested parties: Denda Multimedia B.V. and Denda
                                                                                                Directory Services B.V.
—     in any event: order OHIM to pay the costs.
                                                                                                     (Case C-109/03)
                                                                                                     (2003/C 124/10)
Pleas in law and main arguments
—     Plea alleging breach of the presumption that documents               Reference has been made to the Court of Justice of the
      may be relied on or inconsistency in the grounds of the              European Communities by order of the College van Beroep
      judgment:                                                            voor het bedrijfsleven (Administrative Court for Trade and
                                                                           Industry) of 8 January 2003, received at the Court Registry on
      Contrary to what the Court of First Instance states, the             10 March 2003, for a preliminary ruling in the case of KPN
      sign reproduced does not present any of the 24 rectangles            Telecom B.V. against Onafhankelijke Post en Telecommunica-
      or any of the six parallelograms of which a rectangular              tie Autoriteit; Interested parties: Denda Multimedia B.V. and
      parallelepiped consists.                                             Denda Directory Services B.V. on the following questions:
                                                                           1.    Is ‘relevant information’ in Article 6(3) of Directive 98/
—     Plea alleging misconstruction of the concept of distinctive                10/EC ( 1) to be interpreted as meaning only the numbers
      character:                                                                 together with the name, address, town/city and postcode
                                                                                 of the person to whom the number has been issued and
      When it is necessary to determine whether a sign is                        any entry as to whether the number is used (exclusively)
      capable of fulfilling its function as an individual mark                   as a fax line published by the organisations concerned or
      for specific goods or services, when the merits of an                      does ‘relevant information’ also cover other data at the
      application for registration as an individual mark for                     disposal of the organisations such as an additional
      those goods and services are being examined, it is                         entry relating to a profession, another name, another
      necessary to reason in terms of the presumed perception                    municipality or mobile telephone numbers?
      of the use which might be made of the sign and not in
      terms of the actual perception of any actual use already             2.    Is ‘meet (...) reasonable requests (...) on terms which
      made of the sign. The Court of First Instance maintains                    are fair, cost oriented and non-discriminatory’ in the
      that the distinctive character of the sign must be assessed                provision referred in Question 1 to be interpreted as
      in relation ‘to the perception of the relevant public’. In                 meaning that:
      that regard, the relevant public consists of all persons
      likely to find themselves in the presence of the sign and                  a)    numbers together with the name, address, town/city
      cannot therefore be reduced to the much more restricted                          and postcode of the person to whom the number
      circle of consumers likely to acquire the goods or services                      has been issued must be made available for a
      which the sign is supposed to designate.                                         remuneration of only the marginal costs involved in
                                                                                       actually making them available, and
      Furthermore, the Court of First Instance indirectly but
      definitely misconstrued the concept of distinctive charac-                 b)    data other than those referred to in paragraph (a)
      ter when it failed to rule on whether or not the sign was                        must be made available for a remuneration intended
      incapable of distinguishing one bar of soap from another                         to cover the costs of what the provider of these data
      as coming from a specific undertaking, but rather whether                        shows he has incurred in obtaining or providing
      the imperfect picture of that sign had such capacity.                            these data?
      Last, the Court of First Instance misunderstood the
      concept of distinctive character by completely disre-                (1 ) OJ L 101 [1998], p. 24.
      garding the multifunctionality of signs. It is not because
      it might be presumed that, in the presence of the sign in