Judgments nº T-99/01 of Court of First Instance of the European Communities, January 15, 2003

• Resolution Date: January 15, 2003
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-99/01

JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

15 January 2003 (1) (Community trade mark - Opposition procedure - Earlier national trade mark Mixery - Application for Community figurative mark MYSTERY - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation No 40/94) In Case T-99/01,

Mystery drinks GmbH, in judicial liquidation, established in Eppertshausen (Germany), represented by T. Jestaedt, V. von Bomhard and A. Renck, lawyers,

applicant,

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by A. von Mühlendahl, B. Weggenmann and C. Røhl Søberg, acting as Agents,

defendant,

the intervener before the Court of First Instance being

Karlsberg Brauerei KG Weber, established in Homburg (Germany), represented by R. Lange,

ACTION brought against the decision of the Third Chamber Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 February 2001 (Case R 251/2000-3), concerning the registration of the sign MYSTERY as a Community trade mark, which was opposed by the national trade mark Mixery,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Second Chamber),

composed of: R.M. Moura Ramos, President, J. Pirrung and A.W.H. Meij, Judges,

Registrar: D. Christensen, Administrator,

having regard to the application lodged at the Registry of the Court on 7 May 2001,

having regard to the response of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) lodged at the Registry of the Court on 28 August 2001,

having regard to the response of the intervener lodged at the Registry of the Court on 17 August 2001,

further to the hearing on 18 September 2002,

gives the following

Judgment

1.

On 25 October 1996, the applicant filed an application under Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended, for a Community figurative trade mark (‘the application’) at the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).

2.

The sign for which registration was sought is the sign reproduced below:

3.

The goods in respect of which registration of the trade mark was sought were in Classes 29, 30 and 32 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, and correspond to the following descriptions for each class:

- ‘Snacks, in particular dried fruits, nuts, potato chips and potato sticks’, in Class 29;

- ‘Cocoa, sugar, honey, treacle and goods made from these materials, in particular candies and other sweets; pastry and confectionery; icecreams; chewing gum’, in Class 30;

- ‘Non-alcoholic beverages with the exception of non-alcoholic beer’, in Class 32.

4.

The application was published in Community Trade Marks Bulletin No 21/98 of 23 March 1998.

5.

On 16 June 1998, Karlsberg Brauerei KG Weber (‘the intervener’) filed an opposition under Article 42 of Regulation No 40/94 against the registration of that Community trade mark. The ground relied on in support of the opposition was the likelihood of confusion, within the meaning of Article 8(1)(b) of Regulation No 40/94, between the mark claimed and an earlier national mark owned by the intervener. The earlier mark in question is the word mark Mixery registered in Germany as No 395 02 709 to designate the following products:

- ‘Beers and beverages containing beer’, in Class 32.

6.

By decision of 4 February 2000, the Opposition Division rejected the opposition.

7.

On 3 March 2000, the intervener filed an appeal at OHIM, under Article 59 of Regulation No 40/94, against the decision of the Opposition Division.

8.

By decision of 12 February 2001 (‘the contested decision’), which was notified to the applicant on 27 February 2001, the Third Chamber Board of Appeal annulled in part the decision of the Opposition Division.

9.

The Board of Appeal considered, in substance, that there was a likelihood of confusion between the earlier trade mark and the trade mark claimed for products in Class 32. None the less, that likelihood was ruled out for products in Classes 29 and 30.

Procedure and forms of order sought by the parties

10.

The applicant claims that the Court should:

- annul the contested decision;

- order OHIM to pay the costs.

11.

OHIM contends that the Court should:

- take into account the parties' pleadings;

- apportion the costs according to the outcome of the proceedings and, furthermore, not order it to pay the costs.

12.

The intervener claims that the Court should dismiss the action.

13.

By letter of 5 September 2002, the applicant informed the Court that it was insolvent. Moreover, it may be inferred from its observations that it intends to continue the proceedings. Furthermore, the applicant was not represented at the hearing.

The law

Preliminary observations

14.

In its pleadings, OHIM does not express any views on either the applicant's claims or on the fate of the contested decision.

15.

In that regard, OHIM's pleadings are inadmissible. However, the intervener has claimed that the application should be dismissed. The Court must therefore examine the present dispute in accordance with Article 134(4) of the Rules of Procedure of the Court of First Instance.

The single plea in law, alleging infringement of Article 8(1)(b) of Regulation No 40/94

Arguments of the parties

16.

The applicant submits...