Appeal brought on 26 January 2012 by Monster Cable Products, Inc. against the judgment of the General Court (Fourth Chamber) delivered on 23 November 2011 in Case T-216/10: Monster Cable Products, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Live Nation (Music) UK Limited
(Case C-41/12 P)
Language of the case: English
Parties
Appellant: Monster Cable Products, Inc. (represented by: O. Günzel, A. Wenninger-Lenz, Rechtsanwältin)
Otherparties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Live Nation (Music) UK Limited
Form of order sought
The appellant claims that the Court should order:
the judgment of the General court (Fourth Chamber) of the European Union of 23 November 2011 in Case T-216/10 shall be set aside;
the defendant to pay the costs of the Appellant.
Pleas in law and main arguments
The appellant submits that by dismissing the action on the grounds laid down in the Judgment of 23 November 2001, the General Court failed to take account of all the factual background and circumstances of the proceedings, resulting in the Judgment under appeal being based on incomplete facts. Therefore, the Judgment lacks the mandatory overall assessment of all factors that must be taken into account in assessing likelihood of confusion. The Judgment is therefore erroneous and infringes Article 8 (1) (b) of Regulation No. 40/94
2.
In the appellant's view, had a proper overall assessment been made, the General Court would have come to the conclusion that the decision of the First Board of Appeal of 24 February 2010 violates Article 8 (1) (b) CTMR. In summary, the appellant submits that Article 8 (1) (b) of Regulation No. 40/94 has been infringed for the following reasons:
Failure to take account of "the average specialized consumer in the United Kingdom" as being the relevant public in relation to which the analysis of the likelihood of confusion must be carried out;
Misapplication of established legal principles for assessing similarity of goods;
Violation of the principles according to which, in order to assess likelihood of confusion, consideration should be given to all factors relevant to the individual case and, inter alia, to the distinctive character of the earlier mark.
____________1 - Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark OJ L 11, p. 12 - Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark OJ L 78, p. 1