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Judgment of the Court of First Instance (Fifth Chamber) of 7 November 2007. # NV Marly SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM). # Community trade mark - Opposition proceedings - Application for figurative Community trade mark Top iX - Earlier international word mark TOFIX - Relative ground for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94 - Request for proof of genuine use of the earlier mark submitted for the first time before the Court - Inadmissibility. # Case T-57/06.

ECLI:EU:T:2007:333

62006TJ0057

November 7, 2007
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(Case T-57/06)

Community trade mark – Opposition proceedings – Application for figurative Community trade mark Top iX – Earlier international word mark TOFIX – Relative ground for refusal – No likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 40/94 – Request for proof of genuine use of the earlier mark submitted for the first time before the Court – Inadmissibility

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 14 December 2005 (Case R 1147/2004‑2) concerning opposition proceedings between Erdal GmbH and NV Marly SA.

Information relating to the case

Applicant for the Community trade mark:

Community trade mark sought:

Figurative mark Top iX for goods in Class 3 – Application No 2326072

Proprietor of the mark or sign cited in the opposition proceedings:

Erdal GmbH

Mark or sign cited in opposition:

International word mark TOFIX for goods and services in Classes 3 and 4

Decision of the Opposition Division:

Opposition upheld

Decision of the Board of Appeal:

Appeal dismissed

Operative part

The Court:

1.Dismisses the action;

2.Orders NV Marly SA to pay the costs.

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