(Case C‑108/07 P)

Appeal – Community trade mark – Regulation (EC) No 40/94 – Article 8(1)(b) – Likelihood of confusion – Application for Community word mark FERRO – Opposition by the proprietor of the earlier national word mark FERRERO – Evidence of the enhanced distinctiveness of the earlier mark

Re:

Appeal against the judgment of the Court of First Instance (Third Chamber) of 15 December 2006 in Case T-310/04 Ferrero Deutschland v OHIM and Cornu against the decision of the Fourth Board of Appeal of OHIM of 17 March 2004 (Case R 540/2002-4) relating to opposition proceedings between Ferrero OHG mbh and Cornu SA Fontain – Interpretation of Article 8(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 (OJ 1994 L 11, p. 1) – Likelihood of confusion between two trade marks – Weak degree of similarity between the goods – Distinctiveness of the earlier mark.

Operative part

The Court:

1.Sets aside the judgment of the Court of First Instance of the European Communities of 15 December 2006 in Case T‑310/04 Ferrero Deutschland v OHIM– Cornu (FERRO);

2.Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 17 March 2004 (Case R 540/2002‑4);

3.Orders the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Cornu SA Fontain to pay the costs of the appeal;

4.Orders Ferrero Deutschland GmbH to bear its own costs in relation to the proceedings at first instance, except for those relating to the intervention of Cornu SA Fontain;

5.Orders the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) to bear its own costs in relation to the proceedings at first instance, except for those relating to the intervention of Cornu SA Fontain;

6.Orders Cornu SA Fontain to bear its own costs and to pay the costs incurred by Ferrero Deutschland GmbH and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) in relation to its intervention.