16.12.2006   

EN

Official Journal of the European Union

C 310/6

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annul the judgment under appeal in so far as it dismisses the action for annulment brought against the contested decision;

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annul the contested decision in so far as it was not annulled by the judgment under appeal; and

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order OHIM to pay the costs.

1.

Infringement of the rights of defence of Miguel Torres S.A., by reason of the fact that the judgment under appeal dismissed the first of the pleas in law in the action for annulment before the Court of First Instance based on the infringement of the appellant's rights of defence. The refusal by the First Board of Appeal of OHIM to accept the documents produced by Miguel Torres S.A. and its statement of grounds for the appeal, of 25 January 2002, which sought to prove that the mark TORRES is well known throughout the EU is, in the appellant's view, a substantive irregularity on the basis of which the Court of First Instance should have annulled the contested decision. By failing to do so the Court of First Instance also infringed the appellant's rights of defence, undermining the principle of functional continuity and Article 8(1)(b) of the Regulation on the Community trade mark. (1)

2.

Infringement of Article 8(1)(b) of the Regulation on the Community trade mark on account of incorrect interpretation of that provision by the Court of First Instance. The application by the Court of First Instance of that principle contains an error of law because of incorrect application of the criterion of the perception of the relevant public for the purpose of the assessment of the likelihood of confusion between the two conflicting marks. The appellant submits that the Court of First Instance does not take as its starting point the test relating to the perception of the average European consumer, but with the test relating to the perception of the Spanish, Portuguese and Italian consumer.