Appeal brought on 25 July 2012 by Asa Sp. z o.o. against the judgment of the General Court (Third Chamber) delivered on 22 May 2012 in Case T-110/11 Asa v OHIM — Merck (FEMIFERAL)

(Case C-354/12 P)

2012/C 295/40

Language of the case: Polish

Parties

Appellant: Asa Sp. z o.o. (represented by: M. Chimiak, adwokat)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Form of order sought

Pleas in law and main arguments

The appellant alleges that the General Court of the European Union infringed Article 8(1)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (codified version) (1) by failing to have regard to the legal criteria of essential importance for the application of that provision, and by committing manifest errors in the assessment of those criteria in the circumstances of the present case.

Thus, the appellant alleges that the General Court did not apply correctly the interpretation relating to the criterion of the average consumer, a test which is relevant on the facts of the present case. The appellant further alleges that the General Court misappraised the inherent distinctive character of the earlier marks FEMINATAL, although the appellant submitted in its application to the General Court that the Board of Appeal of OHIM did not examine that question diligently and exhaustively. The appellant also takes the view that the General Court misappraised the trade marks’ visual and conceptual similarity. Finally, the appellant alleges that the General Court misappraised the likelihood of deceiving the average consumer.

Furthermore, the appellant alleges that the General Court infringed Article 9 of the Treaty on European Union through the application of other legal criteria in similar cases.

(1)  OJ 2009 L 78, p. 1.