Official Journal of the European Union

C 287/26

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(Case C-346/12 P)

2012/C 287/51

Language of the case: German

Parties

Appellant: DMK Deutsches Milchkontor GmbH (formerly Nordmilch AG) (represented by: W. Berlit, Rechtsanwalt)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Lactimilk, SA

Form of order sought

—Set aside points 1 and 2 of the operative part of the judgment of the General Court of 22 May 2012 (Case T-546/10);

—grant in full the applications made at first instance;

—order Lactimilk, SA to pay the costs incurred by the appellant in the entire proceedings.

Pleas in law and main arguments

The appellant submits that the contested decision of the General Court should be set aside because the General Court wrongly found a similarity between the trade mark applied for by the appellant and the trade marks of Lactimilk SA, and thus, in concluding that there is a likelihood of confusion, incorrectly applied Article 8(1)(b) of Regulation No 40/94. The General Court erred in failing to compare the marks actually at issue as written in the manner in which they were applied for or registered (that is in capital letters), instead examining the likelihood of confusion on the basis of both marks written differently. In so doing the General Court distorted the facts. Moreover, the General Court wrongly assumed that the stress in the trade mark applied for falls on the second syllable, notwithstanding the fact that the trade mark applied for is written in capital letters so that, on the basis of the way in which it would be understood in Spanish also, there can be no question of the stress in the trade mark applied for falling only on the second syllable.

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