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Case C-193/13 P: Appeal brought on 15 April 2013 by nfon AG against the judgment of the General Court (Fourth Chamber) delivered on 29 January 2013 in Case T-283/11 Fon Wireless Ltd. v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
ECLI:EU:UNKNOWN:62013CN0193
62013CN0193
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Official Journal of the European Union
C 189/5
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(Case C-193/13 P)
2013/C 189/09
Language of the case: German
Parties
Appellant: nfon AG (represented by: V. von Bomhard, Rechtsanwältin)
Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Fon Wireless Ltd.
Form of order sought
—Set aside the judgment under appeal;
—In the alternative, set aside the judgment in so far as it upholds a likelihood of confusion on the basis of the earlier Community trade mark No 4719738 ‘fon’ (figure);
—Order the applicant in the proceedings at first instance to pay the costs.
Pleas in law and main arguments
The present appeal is directed against the judgment of the General Court of 29 January 2013 in Case T-283/11, by which the General Court altered the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 March 2011 (Case R 1017/2009-4) relating to opposition proceedings between Fon Wireless Ltd. and nfon AG to the effect that nfon AG’s appeal to the Board of Appeal was dismissed.
The only ground of appeal relied upon by the appellant is an infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark. (1) There must, in the examination of the likelihood of confusion under Article 8(1)(b) of Regulation No 207/2009, be a detailed assessment of all the relevant facts of the individual case. The appeal claims that there has been a failure to comply with that requirement in three respects: first, the error of law made in the identification of the distinctive elements of the opposing marks in the comparison of the signs, second, the error made in automatically assuming the existence of a likelihood of confusion and, third, the lack of a comprehensive assessment of the likelihood of confusion on account of the failure to take into account sufficiently the limited distinctiveness of the element ‘fon’.
* Language of the case: German.
(1) OJ 2009 L 78, p. 1.
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