Appeal brought on 19 November 2010 by 4care AG against the judgment of the General Court (Fourth Chamber) delivered on 8 September 2010 in Case T-575/08 4careAG v Office for Harmonisation in the Internal Market

(Case C-535/10 P)

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2011/C 30/39

Language of the case: German

Parties

Appellant: 4care AG (represented by: S. Redeker, Rechtsanwältin)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Laboratorios Diafarm, S.A.

Form of order sought

Pleas in law and main arguments

The present appeal seeks to set aside the judgment of the General Court, by which it dismissed the appellant’s action seeking to annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market of 7 October 2008 concerning the rejection of its application for registration of the figurative sign ‘Acumed’. The Court confirmed by its judgment the Board of Appeal’s decision, according to which there was a likelihood of confusion with the earlier national word mark ‘AQUAMED ACTIVE’.

The contested judgment of the Court infringes Article 58 of the Statute of the Court of Justice. The Court wrongly interpreted the distinctive character of the opposing mark, the similarity of the opposing signs and the question of the likelihood of confusion.

In the context of the assessment of distinctive character, the Court failed to take into account sufficiently the descriptive character of the term ‘AQUAMED’ in the opposing mark. Moreover the Court misjudged the importance of the numerous earlier third party marks referred to by the appellant. The term ‘AQUAMED ACTIVE’ was not only inherently weakly distinctive because of the use of descriptive sign elements which were to a large extent common on the market. In addition, the distinctive character was weakened subsequently because of the use of similar third party marks in the course of trade. Had the Court correctly assessed those elements, it would have come to the conclusion that the opposing mark ‘AQUAMED ACTIVE’ was at most very weakly distinctive and therefore enjoyed limited protection.

In the context of the assessment of the similarity of the signs, the Court omitted to consider significant facts and therefore failed to carry out a comprehensive assessment. The Court wrongly proceeded on the assumption that the element ‘ACTIVE’ within the opposing mark fell to be disregarded completely when comparing the signs, it being necessary to compare only the terms ‘AQUAMED’ and ‘Acumed’. The Court thereby neglected the fact that the terms ‘AQUAMED’ and ‘ACTIVE’ are closely connected, which precludes the term ‘ACTIVE’ from being completely disregarded. Had the Court compared the opposing mark ‘AQUAMED ACTIVE’ in its entirety to the mark applied for, it would have had to reject a similarity between the signs.

Even if — wrongly — only the terms ‘AQUAMED’ and ‘Acumed’ were to be compared, the Court in any case misjudged the likelihood of confusion from a legal point of view. In so doing, it disregarded a number of earlier decisions in which, in similar circumstances, a likelihood of confusion was ruled out. In addition, the Court failed to take into account that, given the limited protection to be given to the opposing mark, already limited differences between the signs would suffice to rule out a likelihood of confusion. Had the Court taken that into account, it would have come to the conclusion that the mark applied for in any case remained sufficiently different from the opposing mark on the ground of figurative, phonetic and conceptual differences.