Judgments nº T-43/05 of Court of First Instance of the European Communities, November 30, 2006

• Resolution Date: November 30, 2006
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-43/05

In Case T-43/05,

Camper, SL, established in Inca (Spain), represented by I.†TemiÒo†Ceniceros, lawyer,

applicant,

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by J.†Novais GonÁalves, acting as Agent,

defendant,

the other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court of First Instance, being

JC†AB, established in Mˆlnlycke (Sweden), represented by P.†Hedberg, lawyer,

ACTION against the decision of the First Board of Appeal of OHIM of 29 November 2004 (Case R†170/2004-1) concerning opposition proceedings between JC†AB and Camper SL,

THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (Third Chamber),

composed of M.†Jaeger, J.†Azizi and E.†Cremona, Judges,

Registrar: C.†Kristensen, Administrator,

having regard to the application lodged at the Registry of the Court of First Instance on 31 January 2005,

having regard to the response of OHIM lodged at the Registry of the Court of First Instance on 8 June 2005,

having regard to the response of the intervener lodged at the Registry of the Court of First Instance on 24 May 2005,

further to the hearing on 3 May 2006,

gives the following

Judgment

†Background to the dispute

1††††††††On 15 November 2000, the applicant filed an application for a Community trade mark at the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) pursuant to Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ†1994 L†11, p.†1), as amended.

2††††††††The mark for which registration was sought is the following figurative mark:

3††††††††The goods in respect of which registration of the trade mark was sought are in Classes 18, 25 and 39 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended.

4††††††††Those classes are described as follows:

-††††††††Class 18: -Leather and imitations of leather, and goods made of these materials and not included in other classes; animal skins; trunks and travelling bags; umbrellas, parasols and walking sticks; whips, harness and saddlery-;

-††††††††Class 25: -Clothing, footwear, headgear-;

-††††††††Class 39: -Transport; packaging and storing of goods; travel arrangement-.

5††††††††The application for registration of a Community trade mark was published in Community Trade Marks Bulletin No 58/2001 of 2 July 2001.

6††††††††On 30 August 2001, JC AB (-the intervener-) filed a notice of opposition under Article 42(1) of Regulation No 40/94 against registration of the mark applied for in respect of the goods designated in the application, particularly those in Class 25.

7††††††††The intervener is the proprietor of the following figurative mark:

8††††††††The intervener stated, in respect of the goods in Class 25, that that mark was registered in Sweden on 20 August 1993 (Registration No 250877), in Finland on 15 August 2000 (Registration No 218305), and in Denmark on 24 May 2000 (Registration VR†200002263).

9††††††††The opposition was based on Article 8(1)(b) of Regulation No 40/94.

10††††††By decision of 30 January 2004, the Opposition Division of OHIM dismissed the opposition, in so far as it was based on the mark allegedly registered earlier in Sweden in the absence of proof that that mark had been registered. However, it upheld the opposition in respect of all the goods in Class 25, namely clothing, footwear and headgear, in so far as it was based on the intervener-s mark registered earlier in Finland and Denmark (-the earlier mark-). The Opposition Division held that the opposition was well founded on the ground that, because of the identity of the goods covered by the earlier mark with some of the goods covered by the mark applied for, and because of the similarity between the marks at issue, there was a likelihood of confusion on the part of the public in Denmark and Finland between the mark applied for and the earlier mark. Therefore, the Opposition Division dismissed the application for registration of the mark applied for in respect of all the goods in Class 25.

11††††††On 3 March 2004 the applicant lodged an appeal with OHIM under Articles 57 to 62 of Regulation No 40/94 against the Opposition Division-s decision.

12††††††By decision of 29 November 2004 (-the contested decision-) the First Board of Appeal of OHIM dismissed the applicant-s appeal. In that decision the Board of Appeal held that the Opposition Division-s decision was correct, in so far as it refused the application for registration for the goods in Class 25.

†Forms of order sought by the parties

13††††††The applicant claims that the Court should:

-††††††††accept its action against the contested decision together with its copies and annexes, and declare possible the registration of the figurative mark BROTHERS by CAMPER in respect of all the goods in Class 25;

-††††††††order each party to bear its own costs and half of the common expenses.

14††††††The defendant contends that the Court should:

-††††††††dismiss the action as inadmissible or, in the alternative, as unfounded;

-††††††††order the applicant to pay the costs.

15††††††The intervener contends that the Court should uphold the contested decision.

†Law

I†-††Admissibility

A†-††Admissibility of the action

1. †††††Arguments of the defendant

   16††††††The defendant takes the view that the action is inadmissible, since the applicant does not expressly base its action on infringement of any rule of law and does not rely on any other valid ground such as lack of competence, infringement of an essential procedural requirement, or misuse of power.

   17††††††The defendant acknowledges that it may be inferred from the form of order sought by the applicant, according to which there is no likelihood of confusion between the signs because of their dissimilarity, that the applicant is in fact seeking annulment of the contested decision on the ground that it infringes Article 8(1)(b) of Regulation No 40/94. However, the defendant argues that neither that head of claim nor the pleas in law in support of it were properly pleaded by the applicant, so that the application should be dismissed for failure to comply with the essential procedural requirements applicable to such an action.

2. †††††Findings of the Court

   18††††††First of all, the Court observes that the defendant-s plea of inadmissibility is itself characterised by a certain lack of precision. Although the defendant claims that the action is inadmissible both because of the lack of precision of the pleas relied on and the form of order sought - without referring to a specific provision - it acknowledges that it was able to infer from the application that the applicant seeks annulment of the contested decision on the ground that Article 8(1)(b) of Regulation No 40/94 was infringed.

   19††††††Assuming that the defendant claims that the action is inadmissible on the ground that the applicant has failed to formulate precisely in the application the pleas and forms of order sought, in accordance with Article 44(1)(c) and (d) of the Rules of Procedure of the Court of First Instance, the Court recalls that under Article 21 of the Statute of the Court of Justice, applicable to proceedings before the Court of First Instance by virtue of the first paragraph of Article 53 of the Statute, and Article 44(1)(c) of the Rules of Procedure, an application must contain a summary of the pleas in law relied upon, and that that statement must be sufficiently clear and precise to enable the defendant to prepare its defence and to enable the Court to give judgment in the action without the need to seek further information (Case T-127/02 Concept v OHIM (ECA) [2004] ECR II-1113, paragraph 17). The same considerations must apply to all forms of order, referred to by Article 44(1)(d) of the Rules of Procedure, which must be accompanied by pleas and arguments enabling both the defendant and the Court to assess their validity (Case T-43/92 Dunlop Slazenger v Commission [1994] ECR II-441, paragraph 183, and Case T-123/04 Cargo Partner v OHIM (CARGO PARTNER) [2005] ECR II-3979, paragraph 26).

   20††††††In order to ensure legal certainty and the sound administration of justice, if an action is to be admissible the essential points of fact and law on which it is based must be apparent from the text of the application itself, even if only stated briefly, provided the statement is coherent and comprehensible (see CARGO PARTNER, paragraph 19 above, paragraph 27 and the case-law cited).

   21††††††In this case, the form of order sought by the applicant includes a request that the Court declare possible the registration of its mark for all the goods in Class 25.

   22††††††Furthermore, it is clear from the application that, having identified Article 8(1)(b) of Regulation No 40/94 as the legal basis for the refusal to register its trade mark in the contested decision, the applicant states that it is necessary to -focus again on the comparison of the trade marks [which are the] object of this discussion-. Following that statement the applicant goes on to analyse the marks at issue. From that analysis it concludes that, having regard to the differences between the marks at issue, it is clear that there is no likelihood of confusion between the two marks on the part of the public.

   23††††††Finally, in response to a question put by the Court at the hearing, the applicant indicated clearly that it sought annulment of the contested decision, and subsequently directed its pleadings solely to the absence of any likelihood of confusion between the marks at issue.

   24††††††In the light of the foregoing, the Court finds that the applicant-s intention to obtain the annulment of the contested decision on the basis of an alleged infringement of Article 8(1)(b) of Regulation No 40/94 is sufficiently clear from its pleadings.

   25††††††Furthermore, the Court notes that the contested...