Order of the Court (Sixth Chamber) of 4 December 2009 – Rath v OHIM

(Joined Cases C‑488/08 P and C-489/08 P)

Appeals – Community trade mark – Regulation (EC) No 40/94 – Article 8(1)(b) – Word marks Epican and Epican Forte – Opposition by the proprietor of the Community word mark EPIGRAN – Likelihood of confusion – Partial rejection of the application for registration – Appeals manifestly inadmissible

1.                     Appeals – Grounds – Incorrect assessment of the facts and evidence – Inadmissibility – Review by the Court of the assessment of the facts and evidence – Possible only where the clear sense of the evidence has been distorted (Art. 225(1) EC; Statute of the Court of Justice, Art. 58, first para.) (see paras 37-38)

2.                     Appeals – Grounds – Mere repetition of the pleas and arguments put forward before the Court of First Instance – Inadmissibility – Rejection (Art. 225 EC; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Art. 112(1)(c)) (see para. 44)

Re:

Appeals brought against the orders of the Court of First Instance (Seventh Chamber) of 8 September 2008 in Case T‑373/06 Rath v OHIM and Grandel and Case T‑374/06 Rath v OHIM and Grandel by which that court dismissed as manifestly lacking any foundation in law the actions for annulment of the decisions of the First Board of Appeal of OHIM of 5 October 2006 dismissing in part the actions brought against the decisions of the Opposition Division which, by upholding the opposition of the proprietor of the earlier Community word mark ‘EPIGRAN’, refused to register the word marks ‘EPICAN’ and ‘EPICAN FORTE’ for goods and services in class 5 – Likelihood of confusion of the two marks.

Operative part:

The Court:

1.

Dismisses the appeals;

2.

Orders Mr Rath to pay the costs.