5.5.2012

Official Journal of the European Union

C 133/14

—

(Case C-611/11 P)

2012/C 133/26

Language of the case: French

Parties

Appellant: ara AG (represented by: M. Gail, Rechtsanwalt)

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

Form of order sought

—Set aside the judgment of the General Court of the European Union of 22 September 2011 in Case T-174/10;

—annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 26 January 2010 (Case R 481/2009-1);

—order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) and the intervener at first instance to pay the entirety of the costs in the two instances.

Pleas in law and main arguments

The appellant alleges infringement by the General Court of Article 8(1)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark. (<a id="ntc1-C_2012133EN.01001402-E0001" href="#ntr1-C_2012133EN.01001402-E0001">1</a>)

In that connection, the appellant alleges, first, breach of the obligation to state reasons by the General Court in that it failed, in the global assessment of the likelihood of confusion, to provide sufficient reasons with regard to the criteria of the relevant public, the comparison of the marks and the likelihood of confusion. Thus, the General Court erred in finding that the public in question consists of average consumers displaying an average level of attention when the goods concerned are purchased despite the fact that it had been established, initially, that the consumer will rarely have the chance to make a direct comparison between the different marks. Furthermore, the General Court erred in finding, when comparing the marks, that the presence of the two triangular motifs dominated the impression conveyed to the public by the mark in dispute. Consequently, the General Court overstated one or more components of the mark.

In addition, the appellant submits that the General Court breached the obligation to state reasons to the extent that it did not refer to the documents submitted by the intervener in connection with ascertaining whether there was a likelihood of confusion.

Lastly, the appellant submits that the General Court underestimated the importance of the principle that the competent authority has a duty to examine relevant facts of its own motion.

—

(<a id="ntr1-C_2012133EN.01001402-E0001" href="#ntc1-C_2012133EN.01001402-E0001">1</a>) OJ 2009 L 78, p. 1.

—