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Case C-136/08 P: Appeal brought on 3 April 2008 by Japan Tobacco, Inc. against the judgment delivered on 30 January 2008 by the Court of First Instance (Fifth Chamber) in Case T-128/06, Japan Tobacco, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) — Torrefacção Camelo
ECLI:EU:UNKNOWN:62008CN0136
62008CN0136
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15.8.2008
Official Journal of the European Union
C 209/18
(Case C-136/08 P)
(2008/C 209/26)
Language of the case: French
Parties
Appellant: Japan Tobacco, Inc. (represented by: A. Ortiz López, abogada, S. Ferrandis González, abogado and E. Ochoa Santamaría, abogada)
Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) Torrefacção Camelo Lda
Form of order sought
—set aside the judgment of the Court of First Instance of the European Communities of 30 January 2008 delivered in Case T-128/06 and deliver a judgment amending the judgment of the Court of First Instance and declaring it necessary to apply the prohibition contained in Article 8(5) of the Community Trade Mark Regulation (1) to this case and, consequently, in considering the arguments submitted by Japan Tobacco, decide to refuse the registration of Community trade mark No 1 469 121;
—order OHIM to pay the costs of these proceedings.
Pleas in law and main arguments
By its appeal, the appellant claims that the Court of First Instance infringed the Community Trade Mark Regulation and, more specifically, Article 8(5) thereof. Despite the fact that the Court of First Instance recognised the reputation of the earlier mark, the similarity between the marks in question and the connection between the goods designated by the marks, it required actual, real and current evidence of harm to the earlier mark, whilst Article 8(5) requires a mere likelihood of harm to that mark, of unfair advantage being taken of its distinctive character or of detriment to it.
Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).