Order of the Court (Eighth Chamber) of 4 March 2010 – Kaul v OHIM
(Case C‑193/09 P)
Appeal – Application for registration of Community word mark ARCOL – Opposition by proprietor of Community word mark CAPOL – Compliance by OHIM with a judgment annulling a decision of its Boards of Appeal – Right to be heard – Likelihood of confusion – Minimal degree of similarity of the marks required – Rejection for manifest irrelevance of new evidence adduced before the Board of Appeal – Articles 8(1)(b), 61(2), 63(6), 73, second sentence, and 74(2) of Regulation No 40/94
1.Community trade mark – Procedural provisions – Opposition proceedings – Facts and evidence not produced in support of the opposition within the period fixed for that purpose (Council Regulation No 40/94, Art. 74(2)) (see para. 39)
2.Appeals – Grounds – Mere repetition of the pleas and arguments put forward before the Court of First Instance – Error of law relied on not identified – Inadmissibility (Art. 225 EC; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Art. 112(1)(c)) (see para. 47)
3.Community trade mark – Appeals procedure – Action before the Community judicature – Compliance with a judgment annulling a decision of one of the Boards of Appeal – Re-examination of the action – Observance of the rights of the defence (Council Regulation No 40/94, Arts 61(2), 63(6) and 73) (see paras 60-62, 66-67)
4.Community trade mark – Decisions of the Office – Legality – Practice of the Office in previous decisions – Declaration made by the Office’s representative before the Community judicature (Council Regulation No 40/94, Art. 131(4)) (see para. 72)
5.Appeals – Grounds – Mistaken assessment of the facts – Inadmissibility – Review by the Court of Justice of the assessment of the facts put before the Court of First Instance – Possible only where the clear sense of the evidence has been distorted (Art. 225(1) EC; Statute of the Court of Justice, Art. 58, first para.) (see para. 75)
Re:
| Appeal brought against the judgment of the Court of First Instance (Fifth Chamber) of 25 March 2009 in Case T‑402/07 | Kaul | v | OHIM | by which the Court of First Instance dismissed an action for annulment brought by the proprietor of the Community word mark ‘CAPOL’ for goods in Class 1 against Decision R 782/2000-2 of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 1 August 2007, dismissing for the second time the appeal brought against the decision of the Opposition Division which rejected the opposition brought against the application for registration of the Community word mark ‘ARCOL’ for goods in Classes 1, 17 and 20, following the annulment in Case C-29/05 P | OHIM | v | Kaul | of the Third Board of Appeal’s initial decision to reject the opposition. |
Operative part:
1. |
| The appeal is dismissed. |
2. |
| Kaul GmbH shall pay the costs. |