Appeal brought on 15 September 2005 (fax 9 September 2005) by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) against the judgment delivered on 15 June 2005 by the Third Chamber of the Court of First Instance of the European Communities in Case T-7/04 between Shaker di L. Laudato & C. Sas and the Office for Harmonisation in the Internal Market, the other party to the proceedings being Limiñana y Botella, SL

(Case C-334/05 P)

(2005/C 296/25)

Language of the case: Italian

An appeal against the judgment of the Third Chamber of the Court of First Instance of the European Communities of 15 June 2005 in Case T-7/04 between Shaker di L. Laudato & C. Sas and the Office for Harmonisation in the Internal Market was brought before the Court of Justice of the European Communities on 15 September 2005 by the Office for Harmonisation in the Internal Market, represented by O. Montalto and M. Capostagno, acting as Agents, the other party to the proceedings being Limiñana y Botella, SL.

The applicant claims that the Court should:

Pleas in law and main arguments

The applicant considers that the judgment of the Court of First Instance under appeal in this case is vitiated by misinterpretation and misapplication of Article 8(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark.

It is settled principle that the assessment of likelihood of confusion between trade marks under Article 8(1)(b) of the regulation on the Community trade mark is based on two distinct elements: first, an analytical comparison between both the signs and the goods, and then a concise evaluation of the results obtained in order to determine whether the average consumer of the goods in question might believe that those goods come from the same undertaking or from economically-linked undertakings. In particular, as regards the comparison between the signs, the analysis directed at establishing whether the signs are similar must take into consideration the visual, phonetic and conceptual aspects to arrive at a global assessment based on the general impression given by the marks themselves, taking particular account of their distinctive and dominant components.

The applicant claims that the Court of First Instance failed to give effect to the principle cited above and, in particular, it dismissed the possibility of confusion, basing its assessment exclusively on the visual perception of the contested mark, without taking any account of the further elements which may not be ignored in the overall assessment the likelihood of confusion.

The applicant also submits that the judgment under appeal is vitiated by manifest inconsistency and illogicality.