Geronimo - Cheese Pact Hits Boa; Perfix/Cerfix - Simply Non Inwards English

Curia has posted ii fresh Community merchandise grade decisions today from the Court of First Instance of the European Communities (CFI),one inward English linguistic communication in addition to one, alas, not.

When both parties agree, you'd amend listen!

The English-language determination is Joined Cases T-466/04 in addition to T-467/04 Elisabetta Dami v OHIM, The Stilton Cheese Makers Association. It involves the merchandising of an engaging mouse called Geronomo Stilton (above, right). Dami applied to register every bit a Community merchandise grade the words GERONIMO STILTON for, alongside other things:

‘Meat; fish; non-living molluscs in addition to crustaceans; poultry in addition to game; meat extracts; tinned meat; preserved, dried in addition to cooked fruits in addition to vegetables; jellies; jams; eggs; milk; milk products; dairy products; cheese; butter; yoghurt; milk beverages; edible oils in addition to fats; pickles; fruit preserves; vegetable preserves; meat preserves; fish preserves’ (Class 29);

‘Cake pastry; pasta, sweets; coffee; tea; cocoa; sugar; rice; tapioca; artificial coffee; flour; preparations made from cereals; bread; biscuits; tarts; pastries; pralines; ices in addition to ice-cream; honey; syrup; pepper; vinegar; sauces; spices; ice; coffee-, cocoa- in addition to chocolate-based beverages' (Class 30).

The Stilton Cheese Makers Association, custodians of 1 of England's close wonderful treasures (below, left), opposed, citing before marks inward a number of fellow member states corresponding to the discussion STILTON inward relation to milk products inward Classes 16, 29 in addition to 30. The Opposition Division allowed the opposition inward abide by of the goods inward Classes 29 in addition to xxx but rejected the balance of the opposition.

Dami appealed inward relation to Classes 29 in addition to 30; the Association appealed inward relation to Class 16. After Dami wrote to the Board of Appeal to asking a alter inward her specification of goods, the parties jointly applied to the Board to remain the proceedings, referring to that letter. The Board told the parties that it interpreted the missive of the alphabet every bit a articulation application to bound the listing of goods designated yesteryear the grade for which registration was sought, giving the parties a restricted list. Dami asked the Board to review that interpretation, claiming that the missive of the alphabet was only a articulation application for a remain of the appeal proceedings on concern human relationship of the differences inward the parties’ intentions, every bit the opposing political party was calling for to a greater extent than amendments than had been mentioned inward the letter. The Board rejected that application in addition to after held that the withdrawal of the opposition had brought the proceedings to an end.

Dami appealed to the CFI for annulment of that decision, maintaining that the Board had erroneously held that the parties expressed a mutual intention to convey the proceedings to an end. The Association agreed. The CFI thence had to determine whether the activeness was admissible in addition to thence whether the Board could accept validly concluded that the parties had the mutual intention of bringing the proceedings before it to an end.

Annulling the Board's decision, the CFI ruled every bit follows:

* In proceedings next the determination of a Board of Appeal inward opposition proceedings, OHIM had no ability to alter, yesteryear the seat it adopted before the Court, the price of the dispute every bit delimited inward the respective claims in addition to contentions of the CTM applicant in addition to of the opponent. However, it did non follow that OHIM had to ground that an activeness brought against a determination of 1 of its Boards of Appeal should live dismissed.

* While OHIM did non accept the capacity to convey an activeness against a determination of a Board of Appeal, it could non live required to defend systematically every contested determination of a Board of Appeal or automatically to claim that every activeness challenging such a determination should live dismissed. Accordingly in that place was zip to preclude OHIM endorsing a caput of claim of the CTM applicant or simply leaving the determination to the discretion of the Court, piece putting forrad all the arguments that it considered appropriate for giving guidance to the Court.

* In this illustration the caput of claim pose forrad yesteryear OHIM in addition to the arguments advanced inward back upward of it were admissible inward thence far every bit they did non overstep the bounds of the claims in addition to arguments pose forrad yesteryear the applicant.

* The ability provided for nether dominion 20(5) of Commission Regulation 2868/95 (which implemented the CTM Regulation) to bound the listing of goods or services was vested alone inward the CTM who might, at whatever time, apply to OHIM for that purpose. In that context, the withdrawal, inward whole or inward part, of a CTM application had to live made expressly in addition to unconditionally.

* The Board's assertion that the parties had expressed a mutual intention of bringing the proceedings to an terminate had no factual basis. Accordingly both Dami in addition to the Association were correct to assert that the missive of the alphabet simply contained a articulation application for a remain of the proceedings. There was zip to advise that in that place was a subsequent understanding warranting the proceedings beingness brought to an end.

reminds readers that the Boards of Appeal are non an independent judicial forum. They are role of OHIM in addition to serve every bit an administrative filter too every bit an arbiter of the rectitude of registration/oppositions on the facts of private cases.

Merpel adds, it seems such a shame that Dami in addition to Stilton tin cooperate inward ganging upward on OHIM but non inward sitting downward to settle their differences ... oh, in addition to don't forget issues of convergence - when fictional graphic symbol in addition to milk solids come upward correct upward against each other (above, right).


It may only live inward French in addition to Portuguese ... but it's all the same the law

The minute CFI illustration today is Case T-206/04 Fernando Rodrigues Carvalhais v OHIM, Profilpas Snc, available inward French. It involves ii figurative marks - the CTM application for Perfix inward Classes 6, 17 in addition to 19, opposed yesteryear before registrations of Cerfix for goods inward Classes six in addition to 17. The Opposition said in that place was no likelihood of confusion. The Board of Appeal disagreed in addition to rejected the application. The CFI has upheld the Board of Appeal decision. feels that the Opposition Division belike got it right: the goods inward enquiry -- classe six : Profils métalliques et leurs accessoires; classe 17 : Profils en matières plastiques et leurs accessoires, joints et garnitures en matières plastiques; classe xix : Matériaux de structure non métalliques, rebords (garnitures) et joints pour céramiques, rebords (garnitures) et joints pour marbres, rebords (garnitures) et joints pour revêtements en général (non compris dans d’autres classes) -- are non the form of affair you lot purchase on impulse in addition to he'd live surprised if the relevant consumer would come upward unstuck, fifty-fifty allowing for an imperfect retentiveness or a skinful of vino ...