Order of the Court (Eighth Chamber) of 29 November 2011 – Tresplain Investments v OHIM
(Case C-76/11 P)
Appeal – Community trade mark – Regulation (EC) No 40/94 – Articles 8(4) and 52(1)(c) – Community figurative mark Golden Elephant Brand – Application for a declaration of invalidity based on a non-registered national figurative mark GOLDEN ELEPHANT – Renvoi to the national law governing the earlier trade mark – Common-law action for passing-off
1.Appeals – Grounds – Plea submitted for the first time in the context of the appeal – Inadmissibility (see para. 53)
2.Appeals – Grounds – Incorrect assessment of the facts and evidence – Inadmissibility – Review by the Court of the assessment of the facts and evidence – Possible only where the clear sense of the evidence has been distorted (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.) (see para. 73)
Re:
| Appeals against the judgment of the General Court (Eighth Chamber) of 9 December 2010 in Case T-303/08 | Tresplain Investments | v | OHIM – Hoo Hing | by which that court dismissed the action brought by the proprietor of the Community figurative mark ‘Golden Elephant Brand’, for goods in class 30, against Decision R 889/2007-1 of the First Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 7May 2008, annulling the decision of the Cancellation Division which had rejected an application for a declaration of invalidity of that mark, brought by the proprietor of the unregistered national figurative mark ‘GOLDEN ELEPHANT’, for goods in class30 – Interpretation and application of Article 8(4) of Regulation (EC) No 40/94 (now Article 8(4) of Regulation (EC) No 207/2009). |
Operative part
1. |
| The appeal is dismissed. |
2. |
| Tresplain Investments Ltd is ordered to pay the costs. |