Case C-214/05 P

Sergio Rossi SpA

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Appeals – Community trade mark – Article 8(1)(b) of Regulation (EC) No 40/94 – Likelihood of confusion – Word mark SISSI ROSSI – Opposition by the holder of the earlier word mark MISS ROSSI – Arguments presented for the first time at the hearing – Offers of evidence)

Summary of the Judgment

1.        Appeals – Grounds — Erroneous appraisal of evidence properly adduced — Inadmissible except in cases of distortion

(Art. 225 EC; Statute of the Court of Justice, Art. 58, first para.)

2.        Procedure – Application initiating proceedings – Formal requirements

(Rules of Procedure of the Court of First Instance, Art. 44(1)(c))

3.        Community trade mark – Appeals procedure

(Council Regulation No 40/94, Arts 63 and 74(1))

1.        It is for the Court of First Instance alone to assess the value to be attached to the evidence adduced before it. Although it cannot be required to give express reasons for its assessment of the value of each piece of evidence presented to it, it is obliged to provide reasons which will allow the Court of Justice to exercise its judicial review; in particular they must make it possible for the Court to consider whether there has been any distortion of the evidence submitted to the Court of First Instance.

Moreover, the Court of First Instance is free, in its sovereign assessment of the facts, to take account of the fact that a party has refrained from relying on certain facts.

(see paras 22-23)

2.        The Court of First Instance is obliged to reject as inadmissible a head of claim in an application brought before it if the essential matters of law and of fact on which the head of claim is based are not indicated coherently and intelligibly in the application itself. It follows that the failure to state such matters in the application cannot be compensated for by putting them forward at the hearing.

(see para. 37)

3.        First of all, under Article 63 of Regulation No 40/94 on the Community trade mark, a decision of a Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) may be annulled or altered only on grounds of lack of competence, infringement of an essential procedural requirement, failure to comply with the Treaty, with Regulation No 40/94 or with any rule of law relating to their application, or misuse of power. Accordingly, the review of that decision by the Community Courts is confined to review of the legality of that decision, and is thus not intended to re-examine the facts which were assessed within the Office.

Second, it follows from Article 74(1) of that regulation that, in proceedings relating to refusal of registration, the Office is restricted in its examination to the facts, evidence and arguments provided by the parties and the relief sought.

Since the Office could not take into account facts which were not put forward before it by the parties, the lawfulness of its decisions cannot be challenged on the basis of such facts. It follows that the Court of First Instance, likewise, cannot take account of evidence intended to prove those facts.

(see paras 50-52)