27.3.2010

Official Journal of the European Union

C 80/11

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(Case C-552/09 P)

2010/C 80/19

Language of the case: English

Parties

Appellant: Ferrero SpA (represented by: F. Jacobacci, avvocato, C. Gielen and H.M.H. Speyart, advocaten)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Tirol Milch reg.Gen.mbH Innsbruck

Form of order sought

The appellant claims that the Court should:

—set aside the judgment under appeal;

—uphold Ferrero's application for annulment of the contested decision or, alternatively, refer the case back to the General Court for reconsideration; and

—order OHIM to bear its own costs and to pay those of Ferrero, both in first instance and on appeal.

Pleas in law and main arguments

The appellant maintains that the contested judgment should be set aside on the following grounds:

—the Court of First Instance of the European Communities (‘CFI’) violated the system of Article 8 of Regulation No 40/94 (1) in carrying out a single factual assessment of similarity with implications both under Article 8(1)(b) and Article 8(5), even though both provisions have entirely distinct sets of tests;

—the CFI erred in law in finding that it need not take into account the reputation of the earlier trade marks in finding that the conditions for the applicability of Article 8(1)(b) and (5) were not met;

—the CFI erred in law or distorted the facts submitted to it in applying erroneous, unfounded and unreasoned rules of evidence in assessing similarity;

—the CFI erred in law in failing to take into proper account that the earlier trade marks contain verbal trade marks and that the challenged trade mark is figurative; and

—the CFI erred in law in failing to take into proper account the existence of a family of trade marks.

Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark

OJ L 11, p. 1

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