24.9.2011

Official Journal of the European Union

C 282/7

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(Case C-354/11 P)

2011/C 282/13

Language of the case: French

Parties

Appellant: Maurice Emram (represented by: M. Benavï, avocat)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Guccio Gucci Spa

Form of order sought

—set aside the entire judgment of the General Court in that it dismissed the action for annulment of the decision of 11 February 2010 of the First Board of Appeal of OHIM;

—set aside the decision of the Board of Appeal under Article 61 of the Statute of the Court of Justice;

—order OHIM to pay the costs of the proceedings before the General Court and the Court of Justice, and order the company Gucci to pay the costs of the proceedings before OHIM and the General Court.

Pleas in law and main arguments

The appellant submits that there has been infringement of Article 8(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark, and also infringement of Article 17 of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark.

The appellant submits in that regard, first, that the General Court found that there was a likelihood of confusion without taking into account all the relevant aspects of the present case, including the non-use of earlier marks on the market, the taking into account of the distinctive character of the earlier marks, the actual presence on the market of other products of the same type bearing different ‘G’ signs, and the level of importance accorded by the relevant public to that type of sign to identify a commercial mark. The appellant further submits that the General Court found that there had been an incorrect assessment of the similarity between the conflicting marks resulting, inter alia, from a distortion of the facts, an incorrect assessment of the distinctive and dominant character of the earlier marks and an incorrect assessment of the nature of the products at issue.

The appellant submits, second, that there was an incorrect application of the case-law by the General Court, in that it failed to take account of earlier national decisions, in disregard of Article 17 of Regulation No 207/2009.

Lastly, the appellant submits that there has been infringement of the principle of equal treatment by the General Court in that it conducted a partial assessment of the similarity between the signs, whilst ignoring the word content of the mark applied for and comparing the signs on the basis of excessively broad criteria.

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Language of the case: French

ECLI:EU:C:2011:140

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