JUDGMENT OF THE COURT (First Chamber)

18 September 2008(*)

(Appeal – Community trade mark – Application for the Community word mark ARMAFOAM – Earlier Community trade mark NOMAFOAM – Relative ground for refusal – Similarity of the signs – Existence of a relative ground for refusal in part of the European Community)

In Case C‑514/06 P,

APPEAL under Article 56 of the Statute of the Court of Justice, brought on 15 December 2006,

Armacell Enterprise GmbH, established in Münster (Germany), represented by O. Spuhler, Rechtsanwalt,

appellant,

the other parties to the proceedings being:

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by A. Folliard-Monguiral, acting as Agent,

defendant at first instance,

nmc SA, established in Raeren-Eynatten (Belgium), represented by P. Péters and T. de Haan, avocats,

intervener at first instance,

THE COURT (First Chamber),

composed of P. Jann, President of the Chamber, A. Tizzano, A. Borg Barthet, M. Ilešič and E. Levits (Rapporteur), Judges,

Advocate General: V. Trstenjak,

Registrar: C. Strömholm, Administrator,

having regard to the written procedure and further to the hearing on 10 January 2008,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1        By its appeal, Armacell Enterprise GmbH (‘the appellant’) seeks to have set aside the judgment of the Court of First Instance of the European Communities in Case T-172/05 Armacell v OHIM – nmc (ARMAFOAM) [2006] ECR II-4061 (‘the judgment under appeal’), by which that Court dismissed its action against the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), of 23 February 2005 (Case R 552/2004-1, ‘the contested decision’), relating to opposition proceedings between nmc SA (‘nmc’) and the appellant.

 Legal context

2        Article 1(2) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), provides:

‘A Community trade mark shall have a unitary character. It shall have equal effect throughout the Community: it shall not be registered, transferred or surrendered or be the subject of a decision revoking the rights of the proprietor or declaring it invalid, nor shall its use be prohibited, save in respect of the whole Community. This principle shall apply unless otherwise provided in this Regulation.’

3        Article 8 of Regulation No 40/94, entitled ‘Relative grounds for refusal’ is worded as follows:

‘1. Upon opposition by the proprietor of an earlier trade mark, the trade mark applied for shall not be registered:

…

(b)      if because of its identity with or similarity to the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected; the likelihood of confusion includes the likelihood of association with the earlier trade mark.

…

2. For the purposes of paragraph 1, “Earlier trade marks” means:

(a)      trade marks of the following kinds with a date of application for registration which is earlier than the date of application for registration of the Community trade mark, taking account, where appropriate, of the priorities claimed in respect of those trade marks:

(i) Community trade marks;

…’ .

4        Article 43(5) of Regulation No 40/94 provides:

‘If examination of the opposition reveals that the trade mark may not be registered in respect of some or all of the goods or services for which the Community trade mark application has been made, the application shall be refused in respect of those goods or services. Otherwise the opposition shall be rejected.’

5        Article 63 of Regulation No 40/94, entitled ‘Actions before the Court of Justice’, lays down the following provisions:

‘1. Actions may be brought before the Court of Justice against decisions of the Boards of Appeal on appeals.

2. The action may be brought on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaty, of this Regulation or of any rule of law relating to their application or misuse of power.

…

4. The action shall be open to any party to proceedings before the Board of Appeal adversely affected by its decision.

…’.

6        Article 108 of Regulation No 40/94 states:

‘1. The applicant for or proprietor of a Community trade mark may request the conversion of his Community trade mark application or Community trade mark into a national trade mark application

(a) to the extent that the Community trade mark application is refused, withdrawn, or deemed to be withdrawn;

…

2. Conversion shall not take place:

...

(b)      for the purpose of protection in a Member State in which, in accordance with the decision of [OHIM] or of the national court, grounds for refusal of registration or grounds for revocation or invalidity apply to the Community trade mark application or Community trade mark.

…’

 Background to the dispute

7        On 3 December 2001, the appellant filed an application at OHIM, pursuant to Regulation No 40/94, for registration of the word sign ARMAFOAM as a Community trade mark (‘the mark applied for’).

8        The goods in respect of which registration was sought are in Class 20 of the Nice Agreement of 15 June 1957 concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks, as revised and amended, and correspond to the following description: ‘foam goods made from elastomers, thermoplastics or thermosets as system component or as end use application’.

9        The Community trade mark application was the subject of a notice of opposition filed by nmc, which pleaded a likelihood of confusion, within the meaning of Article 8(1)(b) of Regulation No 40/94, between the word sign ‘ARMAFOAM’ and nmc’s earlier Community word mark NOMAFOAM, registered on 31 October 1997 in respect of the following goods:

–        Class 17: ‘Products in semi-processed plastic materials, weatherstripping, packing and insulating materials; polyethylene foam (semi-processed material), materials used for thermal and acoustic insulation, padding and stuffing materials of plastic, packing (cushioning, stuffing) materials of plastic, substances for insulating buildings against moisture and cold included in this class, soundproofing materials, flexible pipes, not of metal’;

–        Class 19: ‘Building materials (non-metallic); non-metallic rigid pipes for building; wall linings included in this class’;

–        Class 20: ‘Products of plastic not included in other classes, packaging containers of plastic, mattresses, cushions, pads of plastic used as supports, in particular for sitting and/or kneeling during gardening and/or do‑it‑yourself activities, sporting, gymnastic, recreation and leisure activities’;

–        Class 27: ‘Mats, non-slip mats, carpets for automobiles, rugs and matting; carpets, rugs, mats and matting of plastic used as supports, in particular for sitting and/or kneeling during gardening and/or do-it-yourself activities, sporting, gymnastic, recreation and leisure activities; floor coverings, wall linings, insulating coverings not included in other classes, wall hangings, not of textile’;

–        Class 28: ‘Gymnastic and sporting articles not included in other classes’.

10      By decision of 24 May 2004, the Opposition Division rejected the opposition on the ground that the word sign ‘ARMAFOAM’ and the earlier mark were sufficiently dissimilar to rule out any likelihood of confusion on the part of the average Community consumer within Community territory.

11      After hearing the appeal brought by nmc against that decision, the First Board of Appeal of OHIM, by the contested decision, annulled the decision of the Opposition Division. It found that, as a result of the visual and phonetic similarity of the two conflicting marks and of the very great similarity of the goods, which could be sufficient to offset the lower degree of visual and phonetic similarity of the marks, there was a likelihood of confusion between the two marks, in particular on the part of the relevant non-English-speaking public.

 The action before the Court of First Instance and the judgment under appeal

12      By the judgment under appeal, the Court of First Instance dismissed the action for annulment of the contested decision, based by the appellant on a single plea alleging infringement of Article 8(1)(b) of Regulation No 40/94, on the ground that the Board of Appeal had erred in finding that there was a likelihood of confusion.

13      The Court of First Instance first of all recalled, in paragraph 33, its case‑law according to which:

‘… it follows from the unitary character of the Community trade mark laid down in Article 1(2) of Regulation No 40/94 that an earlier Community trade mark is protected in the same way in all Member States. Earlier Community trade marks may therefore be relied on in opposition to any subsequent application to register a trade mark which infringes their protection, even if it does so only in the perception of the consumers of part of the Community. It follows that the principle laid down in Article 7(2) of Regulation No 40/94, according to which it suffices, in order for registration of a trade mark to be refused, that an absolute ground for refusal exists only in part of the Community, also applies by analogy to a relative ground for refusal under Article 8(1)(b) of Regulation No 40/94 ...’.

14      Next, in paragraph 34 of the judgment under appeal, the Court of First Instance, like the Board of Appeal and the parties, defined the relevant public as being composed of all consumers within the Community.

15      Having rejected, in paragraphs 40 to 43 of the judgment under appeal, the plea of inadmissibility raised by nmc with regard to the appellant’s arguments relating to the comparison of the goods, the Court of First Instance, in paragraphs 44 to 55 of the judgment under appeal, went on to consider the goods and held that the Board of Appeal had correctly found that the goods covered by the conflicting marks are similar, if not identical, within the meaning of Article 8(1)(b) of Regulation No 40/94.

16      With regard to the comparison of the conflicting marks, the Court of First Instance stated as an introductory point, in paragraph 56 of the judgment under appeal, that the Board of Appeal had found that those marks are similar, particularly from the point of view of the relevant non-English-speaking public.

17      Concerning the conceptual comparison of those marks, the Court of First Instance first noted, in paragraph 57 of the judgment under appeal, that the Board of Appeal had, on the one hand, stated that those trade marks, considered in their entirety, were fanciful constructions that did not convey any coherent meaning and were therefore not suitable for conceptual comparison, while taking the view, on the other hand, that, of all the consumers of the goods in question, only English‑speaking consumers were likely automatically to separate the suffix ‘foam’, an English word, within the conflicting marks.

18      Subsequently, the Court of First Instance defined its position as follows in paragraph 60 of the judgment under appeal:

‘The Court considers that the Board of Appeal’s assessment is well founded, at the very least as far as non-English-speaking consumers are concerned, in relation to whom it is not necessary to make a conceptual comparison of the marks. The [appellant’s] submission that non-English-speaking consumers will, in the same way as their English-speaking counterparts, automatically identify the suffix “foam”, an English word, and understand its meaning and therefore identify it as descriptive of the goods covered by the marks, is manifestly wrong. Nor, moreover, is that submission substantiated by evidence in the file.’

19      In respect of the visual and phonetic comparison of the conflicting marks, the Court of First Instance observed, in paragraph 64 of the judgment under appeal, that the only visual and phonetic differences between the marks that can objectively be detected by the non‑English‑speaking public derive from the prefixes ‘ar’ and ‘no’ of those marks.

20      The Court of First Instance stated in paragraph 65 of the judgment under appeal that the fact that the first component of word marks may be more likely to catch the consumer’s attention than the following components cannot undermine the principle that the examination of the similarity between the marks must take account of the overall impression given by those marks, since the average consumer normally perceives a mark as a whole and does not examine its individual details.

21      The Court of First Instance accordingly took the view, in paragraph 66 of the judgment under appeal, that, for the non-English-speaking public, the differences between the prefixes ‘ar’ and ‘no’ of the conflicting marks, despite their position at the beginning of the marks, were unlikely to remove the impression of great visual and phonetic similarity produced by those marks.

22      The Court of First Instance consequently concluded in paragraphs 67 and 68 of the judgment under appeal:

‘67       It follows that, visually and phonetically, the marks are similar, at the very least as far as the non-English-speaking public is concerned. Accordingly, and taking account of the fact that, for that public, a conceptual comparison of those marks is irrelevant, it must be concluded that, for those people, the marks are similar.

68      In the light of that conclusion and the case-law cited at paragraph 33 above, according to which earlier Community trade marks may be relied on in opposition to any subsequent application to register a trade mark which infringes their protection, even if it does so only in the perception of the consumers of part of the Community, it must be held that the Board of Appeal was right to consider, at paragraph 19 of the contested decision, that the conflicting marks are similar within the meaning of Article 8(1)(b) of Regulation No 40/94, and it is not necessary to determine whether those marks are also similar for the English-speaking public.’

 Procedure before the Court

23      In its appeal, the appellant claims that the Court should:

–      set aside the judgment under appeal;

–        order OHIM to pay the costs relating to the proceedings before the Court of Justice;

–        annul the contested decision; and

–        order OHIM to pay the costs relating to the proceedings before the Court of First Instance and before OHIM.

24      OHIM contends that the Court should:

–        dismiss the appeal as in part inadmissible and in part unfounded; and

–        order the appellant to pay the costs.

25      nmc contends that the Court should:

–        dismiss the appeal; and

–        order the appellant to pay the costs.

 The appeal

26      The appellant invokes two pleas in support of its appeal, alleging infringement of the second sentence of Article 43(5) of Regulation No 40/94 read in combination with Article 8(1)(b) of that regulation, and infringement of Article 63(2) of that regulation, respectively.

 The first part of the first plea and the second plea

 Arguments of the parties

27      By the first part of the first plea and the second plea, which should be examined together, the appellant criticises the Court of First Instance for having failed to rule on the issue of the similarity of the marks as they may be perceived by the English‑speaking public.

28      First, according to the appellant, by declaring in paragraph 68 of the judgment under appeal that the similarity of the conflicting marks as perceived by the non‑English-speaking population of the Community is sufficient to create a similarity between those marks, and by not giving a decision on the issue, considered to be irrelevant, of their similarity as far as the English-speaking public is concerned, the Court of First Instance infringed the second sentence of Article 43(5) of Regulation No 40/94, read in combination with Article 8(1)(b) of that regulation.

29      It submits that, insofar as a large portion of the entire population of the Community is able to speak English, and inasmuch as the Court of First Instance stated, in paragraph 34 of the judgment under appeal, that the relevant public was composed of all consumers within the Community, it could not lawfully merely declare that the alleged similarity between the conflicting marks exists only in respect of a vaguely-defined portion of the total public, namely the non‑English‑speaking public. The Court of First Instance also should have ruled on the question of the similarity of those marks with regard to the other portion of the relevant public, namely the English-speaking public.

30      Secondly, by failing to take that English-speaking public into account when examining the similarity of the conflicting marks, the Court of First Instance did not give sufficient grounds for its decision, thereby infringing an ‘essential procedural requirement’ within the meaning of Article 63(2) of Regulation No 40/94.

31      Since the appellant had submitted the entire contested decision to the Court of First Instance for review, it had a valid claim that that Court should deal comprehensively with all questions and aspects, including the question of the similarity of the marks from the point of view of the English‑speaking public. In addition, with regard to, in particular, the later decisions to be taken regarding the sign ‘ARMAFOAM’, it is important for the appellant to ascertain in which geographical or linguistic area of the Community the likelihood of confusion exists.

32      Since the obligation to give sufficient grounds for a judicial decision must be regarded as a characteristic of the principle of legitimate expectations, which is applicable in Community law as a whole, the Court of First Instance, in the appellant’s view, also infringed that principle.

33      OHIM’s main plea is that the first part of the first plea and the second plea are inadmissible.

34      First, by alleging that the Court of First Instance failed to rule on the issue of the similarity of the marks from the perspective of the English-speaking public, the appellant, OHIM submits, has raised for the first time before the Court of Justice a plea that was not raised before the departments of OHIM or the Court of First Instance and is thus altering the subject‑matter of the dispute, in breach of Article 113(2) of the Rules of Procedure of the Court of Justice.

35      If the appellant had wanted the Court of First Instance to adjudicate on the likelihood of confusion in each part of the Community where the earlier mark is protected, it should have made a request to the Court of First Instance to that effect. Since the Court of First Instance was not seised of such a request, the appellant cannot validly challenge, at the present stage of the proceedings, the territorial scope of the assessment of the likelihood of confusion undertaken by the Court of First Instance.

36      Secondly, the appellant has not demonstrated its interest in having the judgment under appeal set aside on the ground of failure to take into account the English‑speaking public, since that judgment does not prevent it from requesting the conversion of its application for a Community trade mark to an application for a national mark under Article 108(1)(a) of Regulation No 40/94, which the appellant has not yet done.

37      As a subsidiary plea, OHIM submits that the first part of the first plea and the second plea are unfounded.

38      OHIM points out that, in the judgment in Case T-342/02 Metro‑Goldwyn-Mayer Lion v OHIM – Moser Grupo Media (Moser Grupo Media) [2004] ECR II‑3191, and in the order in Case T-194/05 TeleTech Holdings v OHIM – Teletech International (TELETECH INTERNATIONAL) [2006] ECR II-1367, paragraphs 25 to 28, the Court of First Instance stated that it does not follow from the first sentence of Article 43(5) of Regulation No 40/94 that OHIM is required to found the rejection of the trade mark application on all the grounds for refusal of registration put forward in support of the opposition on the basis of which it could be rejected. Since the Court of First Instance exonerated OHIM from the duty to examine of its own motion whether a likelihood of confusion exists vis‑à‑vis each and every earlier right, provided that the Community trade mark application can be refused in its entirety on the basis of a portion of the earlier rights invoked in support of the opposition, OHIM, by analogy, should also be exempted from having to examine of its own motion whether a likelihood of confusion exists in all parts of the territory in which the earlier mark is registered, on condition that the Community trade mark application can be refused in its entirety on the basis that there is a likelihood of confusion in part of that territory.

39      Since Article 63 of Regulation No 40/94 does not confer a broader power of appraisal on the Court of First Instance than that conferred on OHIM, the aforementioned reasoning is applicable mutatis mutandis to the Court of First Instance. Likewise, Article 63 of Regulation No 40/94 cannot have the effect of imposing on the Court of First Instance more onerous obligations than those weighing on OHIM.

40      The analogy established in paragraph 33 of the judgment under appeal between the principle laid down in Article 7(2) of Regulation No 40/94 and the principle applicable to a relative ground for refusal under Article 8(1)(b) of that regulation is therefore well founded.

41      As regards the first part of the first plea, nmc submits that the Court of First Instance, the reasoning of which is substantiated by references to its established case-law on this subject, did not err in law in holding, at paragraph 33 of the judgment under appeal, that the unitary character of the Community trade mark implies uniform protection in all Member States and that the principle laid down in Article 7(2) of Regulation No 40/94 applies by analogy to a relative ground for refusal under Article 8(1)(b) of that regulation.

42      When the earlier trade mark is a Community trade mark, the mark in respect of which registration is sought can be registered as a Community trade mark only if no relative grounds for refusal exist in any Member State or linguistic area. It would be unacceptable to register Community trade marks which are confusingly similar to, and infringe, earlier marks covering all or part of the Community. The finding of the Court of First Instance, in paragraph 34 of the judgment under appeal, that the relevant public is composed of all consumers within the Community does not mean that a likelihood of confusion must be present throughout the entire territory of the Community.

43      Regarding the second plea, nmc contends that, as soon as a likelihood of confusion has been found in part of the Community, it is not necessary to assess whether a likelihood of confusion exists in all other parts or linguistic areas of it.

 Findings of the Court

–       Admissibility

44      First of all, it is necessary to examine the first plea of inadmissibility raised by OHIM with regard to the first part of the first plea and the second plea.

45      As the Court of First Instance observed in paragraphs 57, 61 and 62 of the judgment under appeal, in the comparison of the conflicting marks the Board of Appeal carried out an analysis of those marks from the point of view of the English-speaking and non-English-speaking public and concluded, as it was also noted in paragraph 56 of the judgment under appeal, that those marks were similar, in particular from the point of view of the relevant non-English-speaking public.

46      Disputing the contested decision, the appellant submitted that, in its view, the second part of the conflicting marks, namely the English word ‘foam’, would be perceived by the relevant public as being purely descriptive of the goods referred to by those marks, English being the decisive language, from the point of view of the relevant public, for the purpose of assessing the conceptual similarity of the marks at issue.

47      The Court of First Instance held, in paragraph 68 of the judgment under appeal, that the Board of Appeal was right to consider that the conflicting marks were ‘similar’ within the meaning of Article 8(1)(b) of Regulation No 40/94 and that it was not necessary to determine whether those marks were also similar for the English‑speaking public.

48      It follows from the foregoing that the issue of the similarity of the marks at issue, from the point of view of the English-speaking public, was part of the subject‑matter of the proceedings before the Court of First Instance, the appellant considering it to be the main angle of analysis and the Court of First Instance holding, on the contrary, that that issue was irrelevant in the light of the finding that the marks were similar from the point of view of the non-English-speaking public.

49      Consequently, in criticising the Court of First Instance for having failed to rule on the issue of the similarity of the marks from the point of view of the English‑speaking public, the appellant has not changed the subject‑matter of the proceedings or infringed Article 113(2) of the Rules of Procedure of the Court of Justice.

50      As regards the second plea of inadmissibility raised by OHIM, it must be observed that, under the second paragraph of Article 56 of the Statute of the Court of Justice, an appeal can be brought by any party which has been unsuccessful, in whole or in part, in its submissions.

51      Since the Court of First Instance rejected, in the judgment under appeal, the appellant’s submissions seeking annulment of the contested decision, the appellant has established that it has an interest in entering an appeal against that judgment, regardless of whether that prevents it from requesting the conversion of its Community trade mark application into a national trade mark application.

52      In this respect, the question whether the plea alleging that the Court of First Instance failed to rule on the issue of the similarity of the marks from the point of view of the English-speaking public can cause the judgment under appeal to be set aside depends on the assessment of the merits of that plea and cannot affect its admissibility.

53      It is therefore necessary to declare the first part of the first plea and the second plea to be admissible.

–       Substance

54      It must first be recalled that Article 1(2) of Regulation No 40/94 specifies that a Community trade mark has a unitary character. Subject to certain exceptions (see in that regard Article 106, on the prohibition of use of Community trade marks, and Article 107, on prior rights applicable to particular localities, of Regulation No 40/94), the Community trade mark ‘shall have equal effect throughout the Community: it shall not be registered, transferred or surrendered or be the subject of a decision revoking the rights of the proprietor or declaring it invalid, nor shall its use be prohibited, save in respect of the whole Community’ (see Case C-9/93 IHT Internationale Heiztechnik and Danzinger [1994] ECR I‑2789, paragraph 55).

55      Under Article 8(1)(b) and (2) of Regulation No 40/94, in the case where the earlier mark relied on in support of opposition proceedings is a Community trade mark, the trade mark in respect of which registration is sought will not be registered if, because of its identity with or similarity to the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public in the Community territory.

56      Contrary to what the appellant maintains, it does not follow from Article 8(1)(b) of Regulation No 40/94 that, for a Community trade mark to be refused registration under that provision, the likelihood of confusion must exist in all Member States and in all linguistic areas of the Community.

57      In fact, the unitary character of the Community trade mark means that an earlier Community trade mark can be relied on in opposition proceedings against any application for registration of a Community trade mark which would adversely affect the protection of the first mark, even if only in relation to the perception of consumers in part of the Community.

58      Consequently, having established that the Board of Appeal’s assessment is not flawed as regards the comparison of the marks at issue from the point of view of the relevant non-English-speaking public, the Court of First Instance was fully entitled to dismiss the appellant’s action without comparing those marks from the point of view of the English-speaking public.

59      Next, the appellant’s argument that the Court of First Instance should have also ruled on the issue of the similarity of those marks from the point of view of the relevant English-speaking public, taking into account the possibility of conversion of the appellant’s Community trade mark application to a national trade mark application, must also be rejected.

60      Admittedly, as follows from Article 108(2)(b) of Regulation No 40/94, the grounds for refusal of the registration of the Community trade mark determine whether that trade mark can be registered at national level.

61      However, the purpose of opposition proceedings is to provide undertakings with an opportunity to oppose, by way of a single procedure, applications for Community trade marks which might create a likelihood of confusion with their earlier marks or rights, and not to resolve in advance possible conflicts at national level.

62      As is apparent from the grounds, and in particular from paragraph 68, of the judgment under appeal, the Court of First Instance confirmed the assessment of the Board of Appeal only in regard to the similarity of the conflicting marks as perceived by the non-English-speaking public. It follows, as OHIM has also stated, that the judgment under appeal does not prevent the appellant from requesting the conversion of the Community trade mark application to one for a national trade mark to the extent to which that application concerns English‑speaking countries.

63      Lastly, contrary to what the appellant maintains, by restricting itself to ruling on the likelihood of confusion from the point of view of the relevant non‑English‑speaking public, the Court of First Instance did not infringe the obligation to give reasons for its judgments.

64      Paragraphs 33 and 68 of the judgment under appeal set out, to the requisite legal standard, the reasons why the Court of First Instance refrained from ruling on the issue of the similarity of the marks from the point of view of the English‑speaking public.

65      In the light of the foregoing, the first part of the first plea and the second plea must be rejected as being unfounded.

 The second part of the first plea

 Arguments of the parties

66      By the second part of the first plea, the appellant alleges that the Court of First Instance was wrong to conclude that the conflicting marks were similar, even as regards the perception which the non-English-speaking public in the Community might have of them, and submits that, consequently, the conditions for the application of Article 8(1)(b) of Regulation No 40/94 were not satisfied.

67      According to OHIM and nmc, the second part of the first plea is inadmissible. The appellant, they argue, does not put forward any legal argument in support of its assertion that Article 8(1)(b) of Regulation No 40/94 was infringed and confines itself to criticising the factual findings of the Court of First Instance, inter alia, the finding relating to the similarity of the signs at issue, in which that Court based itself on an analysis of the understanding of the English word ‘foam’ in the non‑English‑speaking parts of the Community. Having failed to show that the Court of First Instance disregarded any relevant factors when comparing the signs or distorted the facts or evidence, the appellant cannot request the Court of Justice to substitute its own assessment of the facts for that of the Court of First Instance.

 Findings of the Court

68      As regards the second part of the first plea, it must be stated that, by its arguments, the appellant is in effect merely challenging the assessment of the facts made by the Court of First Instance.

69      Pursuant to Article 225(1) EC and the first paragraph of Article 58 of the Statute of the Court of Justice, an appeal is limited to points of law. The Court of First Instance has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and the assessment of that evidence thus do not, save where those facts or evidence have been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see, inter alia, Case C-104/00 P DKV v OHIM [2002] ECR I‑7561, paragraph 22; Case C‑173/04 P Deutsche SiSi-Werke v OHIM [2006] ECR I‑551, paragraph 35; and Case C-25/05 P Storck v OHIM [2006] ECR I‑5719, paragraph 40).

70      Since no distortion of the facts and evidence submitted to the Court of First Instance is alleged in the present case, the second part of the first plea must be rejected as inadmissible and, consequently, the appeal must be dismissed in its entirety.

 Costs

71      Under Article 69(2) of the Rules of Procedure of the Court of Justice, applicable in appeal proceedings by virtue of Article 118 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since OHIM and nmc have applied for costs to be awarded against the appellant and the latter has been unsuccessful, Armacell Enterprise GmbH must be ordered to pay the costs.

On those grounds, the Court (First Chamber) hereby:

1.      Dismisses the appeal;

2.      Orders Armacell Enterprise GmbH to pay the costs.

[signatures]

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* Language of the case: English.