30.1.2010

Official Journal of the European Union

C 24/35

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(Case C-459/09 P)

2010/C 24/64

Language of the case: Spanish

Parties

Appellant: Dominio de la Vega, S. L. (represented by: E. Caballero Oliver y A. Sanz-Bermell y Martínez, lawyers)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Ambrosio Velasco, S.A.

Form of order sought

—Set aside entirely the judgment under appeal in Case T-458/07 delivered on 16 September 2009, and consequently,

—Give final judgment in the case, declare that the signs at issue are not similar and therefore that there is no likelihood of confusion, and allow registration of the Community trade mark No 2 789 576‘Dominio de la Vega’ in Class 33, since it is not prohibited by Article 8(1)(b) of Regulation (EC) No 40/94, now Regulation No 201/2009.

—Alternatively, if necessary, refer the case back to the Court of First Instance of the European Communities for judgment in accordance with the binding criteria established by the Court of Justice.

—Order OHIM and the intervening party to pay the costs, both of these proceedings and of the earlier proceedings before the Court of First Instance of the European Communities.

Pleas in law and main arguments

1.Infringement of Article 8(1)(b) and also of Article 8(2)(i) and (ii) of formerly Regulation (EC) No 40/94 (1) now Regulation (EC) No 207/2009 (2). The earlier mark which is the ground of opposition in this case is the Community trade mark. An error of law is committed in the judgment under appeal, the fact that the mark is a Community mark is not taken into account, and the relevant public for the assessment of the likelihood of confusion between the marks at issue is considered to be a public which is incorrect and contrary to that prescribed in Regulation on the Community trade mark applicable to the case.

2.Error of Law in assessment and decision to hold documents produced as inadmissible, resulting in an incorrect assessment of the likelihood of confusion of the Spanish consumer. The Court of First Instance distorted the evidence in support of the coexistence of the marks in Spain, that error of law leading to an infringement of Article 8(1)(b) of Regulation No 40/94, now Regulation No 207/2009

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(1) Council Regulation of 20 December 1993 on the Community trade mark, OJ L 11, p. 1.

(2) Council Regulation of 26 February 2009 on the Community trade mark (codified version) (Text with EEA relevance), OJ L 78, p. 1.

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