Case T-53/05

Calavo Growers, Inc.

v

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

(Community trade mark – Opposition proceedings – Application for figurative mark CALVO – Earlier Community word mark CALAVO – Admissibility of the opposition – Grounds of the opposition lodged in a language other than the language of the proceedings – Article 74(1) of Regulation (EC) No 40/94 – Rule 20(3) of Regulation (EC) No 2868/95)

Summary of the Judgment

Community trade mark – Observations of third parties and opposition – Examination of the opposition

(Council Regulation No 40/94, Arts 42(3) and 74(1); Commission Regulation No 2868/95, Art. 1, Rule 20(3))

Where, in opposition proceedings against the registration of a Community trade mark, the grounds of opposition are limited to the mere reference ‘Likelihood of confusion’, and the explanation of those grounds, lodged in a language other than that of the opposition, cannot be taken into account by the Opposition Division, the question whether the latter may legitimately examine the substance of the opposition must be assessed in the light of Article 74(1) of Regulation No 40/94 on the Community trade mark, which provides that, in proceedings relating to relative grounds for refusal of registration, OHIM is restricted in its examination to the facts, evidence and arguments provided by the parties and the relief sought, and in the light of Rule 20(3) of Regulation No 2868/95 implementing Regulation No 40/94, which specifies that, if the applicant files no observations, OHIM may give a ruling on the opposition on the basis of the evidence before it.

In that respect, the criteria for applying a relative ground for refusal or any other provision relied on in support of arguments put forward by the parties are naturally part of the matters of law submitted for examination by OHIM.

In those circumstances, the Opposition Division does not exceed its powers by carrying out an examination of the likelihood of confusion where such examination can be carried out solely on the basis of a comparison of the signs in question and the goods concerned, all the information relating to those two criteria is contained in the trade mark application, the registration of the earlier mark and the part of the opposition document written in the language of the opposition, and there is no need to have recourse to the explanation of grounds written in another language or to any other sources of information

(see paras 58-59, 66, 68)