Appeal brought on 10 December 2012 by Bimbo, SA against the judgment of the General Court (Seventh Chamber) delivered on 10 October 2012 in Case T-569/10: Bimbo, SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
(Case C-591/12 P)
Language of the case: English
Parties
Appellant: Bimbo, SA (represented by: C. Prat, abogado, R. Ciullo, Barrister)
Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs); Panrico SA
Form of order sought
The appellant claims that the Court should:
set aside the judgment of the General Court (Seventh Chamber) dated 10 October 2012, in Case T-569/10
annul the decision of the Fourth Board of Appeal of OHIM dated 7 October 2010 (Case R-838/2009-4), since it infringes Article 8(1)(b) of Regulation No. 207/2009
order the respondent to pay the costs
Pleas in law and main arguments
In support of the appeal, the appellant relies on a single plea in law, alleging infringement of Article 8(1)(b) of Regulation No. 207/2009.
In particular, the appellant submits that the General Court:
erred in law, in so far as it attributed an independent distinctive role to the element DOUGHNUTS solely based on the finding that it had an alleged average distinctive role and was wholly meaningless to the average Spanish consumer and, as a consequence, did not form a unitary whole or a logical unit with the component BIMBO, without explaining the reasons why the average distinctive character of the component DOGHNUTS or the absence of a meaning for it would automatically confer on that component an independent distinctive character in the perception of the relevant public; and
erred in law, in so far as it based the finding that there was a likelihood of confusion, in essence, on the assumption that the element DOUGHNUTS has an independent distinctive role, without taking into account all the factors specific to the case, in particular, the fact that the first component of the composite trade mark was a trade mark with a reputation. In other words, the General Court interpreted the Medion doctrine as implying that a finding of an independent distinctive role in one of the components of a composite sign renders it unnecessary, in the overall assessment of the likelihood of confusion, to analyse all or some the other factors specific to the case, contrary to the doctrine of the overall assessment of the likelihood of confusion.
____________1 - Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade markOJ L 78, p. 1