Judgment of the Court of First Instance (Fifth Chamber) of 7 November 2007 – Marly v OHIM – Erdal (Top iX)
(Case T-57/06)
Community trade mark – Opposition proceedings – Application for figurative Community trade mark Top iX – Earlier international word mark TOFIX – Relative ground for refusal – No likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 40/94 – Request for proof of genuine use of the earlier mark submitted for the first time before the Court – Inadmissibility
1. Community trade mark – Appeals procedure – Action before the Community judicature (Rules of Procedure of the Court of First Instance, Art. 135(4); Council Regulation No 40/94, Arts 63(2) and 74(1)) (see paras 15-18)
2. Community trade mark – Definition and acquisition of the Community trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 88, 90)
Re:
ACTION brought against the decision of the Second Board of Appeal of OHIM of 14 December 2005 (Case R 1147/2004‑2) concerning opposition proceedings between Erdal GmbH and NV Marly SA.
Information relating to the case
Applicant for the Community trade mark:
NV Marly SA
Community trade mark sought:
Figurative mark Top iX for goods in Class 3 – Application No 2326072
Proprietor of the mark or sign cited in the opposition proceedings:
Erdal GmbH
Mark or sign cited in opposition:
International word mark TOFIX for goods and services in Classes 3 and 4
Decision of the Opposition Division:
Opposition upheld
Decision of the Board of Appeal:
Appeal dismissed
Operative part
The Court:
1.
Dismisses the action;
2.
Orders NV Marly SA to pay the costs.
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