17.11.2012

Official Journal of the European Union

C 355/12

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(Case C-432/12 P)

2012/C 355/21

Language of the case: German

Parties

Appellant: Leifheit AG (represented by: V. Töbelmann and G. Hasselblatt, Rechtsanwälte)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Vermop Salmon GmbH

Form of order sought

The appellant claims that the Court of Justice should:

—set aside the judgment of the General Court of 12 July 2012 in Case T-334/10;

—annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 12 May 2010 in Case R 924/2009-1;

—order OHIM to pay the costs of the proceedings before the Court of Justice, before the General Court and before the Board of Appeal, together with the costs incurred by the appellant;

—in the event that Vermop Salmon GmbH intervenes in the proceedings before it, the appellant further claims that the Court of Justice should:

—order the intervener to pay its own costs.

Grounds of appeal and main arguments

The judgment of the General Court of 12 July 2012 should be set aside, since the General Court erred in law by misconstruing the scope of the examination to be made by the Board of Appeal in appeal proceedings pursuant to Article 63(1) and Article 64(1) of Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark. (1)

The General Court failed to take account of the principle of functional continuity between the different instances of OHIM and wrongly found that complaints brought expressly can also not relieve the Board of Appeal of its duty to examine in full the findings of fact and law in the contested decision.

The General Court ultimately based its judgment on the finding that the issue of genuine use of the earlier mark was a specific preliminary issue which it was not necessary for the Board of Appeal to examine. In doing so, the General Court wrongly overlooked the fact that the issue of requiring evidence of lawful use forms part of opposition proceedings and, as such, falls within the scope of the examination to be made by the Board of Appeal.

In addition, the General Court infringed Article 8(1)(b) of Council Regulation (EC) No 207/2009 on the Community trade mark by misapplying the general principles for assessing the likelihood of confusion. In particular, in its assessment of the similarity of the signs, the General Court based its findings on the empirical rule that consumers place more emphasis on the beginning of words than on the other parts of marks, without assessing whether that rule was applicable in this case. Furthermore, the General Court did not sufficiently assess the appellant’s claim relating to the similarity of the goods. Moreover, it adopted the findings of the Board of Appeal without first assessing their accuracy.

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(1) OJ 2009 L 78, p. 1

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