Official Journal of the European Union

C 179/21

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(Case C-204/10 P)

(2010/C 179/36)

Language of the case: English

Parties

Appellant: Enercon GmbH (represented by: J. Mellor, Barrister, R. Böhm, Rechtsanwalt)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Hasbro Inc.

Form of order sought

The appellant claims that the Court should:

—allow the Appeal against the Judgment of the General Court and annul the Judgment of the General Court, to annul the decision of the fourth Board of Appeal and, as appropriate, the decision of the Opposition Division;

—(as appropriate) remit this case to the Office for a fresh consideration of the issues on this Opposition;

—order the intervener and the Office to pay the Appellant's costs of this Appeal

Pleas in law and main arguments

The Appellant submits that the General Court failed to recognise the errors in the decision of the Board of Appeal, based, as it was, on the illegitimate decision of the Opposition Division. In particular there was a complete failure to recognise (a) that the Medion (1) judgment concerned an exceptional situation in which the usual rule that the average consumer normally perceives a trade mark as a matter of overall impression is displaced but (b) no circumstances existed in this case sufficient to justify such an exceptional approach. No part of the earlier mark in this case had an ‘independent distinctive role’.

Furthermore the Appellant submits that, due to the incorrect application of a Medion type principle at the earlier stage of the assessment of similarity, no proper consideration was given to the global assessment of the likelihood of confusion.

Language of the case: English

(1) OJ C 106, 30.04.2004, p. 31

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