Appeal brought on 13 January 2006 by Les Éditions Albert René SARL against the judgment of the Court of First Instance (Third Chamber) delivered on 27 October 2005 in Case T-336/03: Les Éditions Albert Réné SARL v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-16/06 P)

Language of the case: English

Parties

Appellant: Les Éditions Albert René SARL (represented by: J. Pagenberg, Rechtsanwalt)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Orange A/S

Form of order sought

The applicant claims that the Court should:

annul the Judgment of the Court of First Instance of 27 October 2005 in Case T-336/03;

annul the decision of the Board of Appeal of OHIM of 14 July 2003 in Case R 559/2002-4;

reject the application for registration of MOBILIX Nr. 671396 for all the goods and services for which it has bee applied;

order the OHIM to pay the costs in relation to the proceedings before the Court of First Instance and before the Court of Justice.

Pleas in law and main arguments

The Appellant claims that the Judgment of the Court of First Instance violates Article 63 CTMR and general principles of Community administrative and procedural law in that it concluded, contrary to the contested Board decision, that the conflicting marks, OBELIX and MOBILIX, are not similar, thereby taking a decision to the detriment of the Appellant on an issue that had not been properly raised, and thereby exceeding the competence of the Court of First Instance when reviewing decisions of OHIM Boards of Appeal in a case like the present one.

The Appellant further claims that the Court of First Instance, even if that Court was entitled to decide the issue of similarity of the conflicting marks to the detriment of the Appellant, violated Article 8 (1)(b) CTMR in that it applied erroneous legal criteria in determining that the conflicting marks, OBELIX and MOBILIX, are not similar, as well as in determining that some of the conflicting goods and services are similar, while others are not.

The Appellant further claims that the Court of First Instance violated Article 74 CTMR in refusing to accept that the OBELIX mark was well-known and highly distinctive.

The Appellant further claims that the Court of First Instance violated Article 63 CTMR and its own Rules of Procedure in that it declared inadmissible the Appellants claim before that Court to annul the contested Board decision on the grounds that it had not applied Article 8 (5) CTMR to the case at hand.

The Appellant further claims that the Court of First Instance violated articles 44 and 48 of its own Rules of Procedure in that it declared inadmissible the claim, presented in the alternative at the hearing, that the Court remand the case to the Board in order to allow the Appellant to establish the reputation of the mark OBELIX.

The Appellant finally claims that the Court of First Instance violated Article 63 CTMR and its own Rules of Procedure, in particular Article 135 (4) thereof, in that it declared inadmissible certain documents introduced before the Court of First Instance.

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