29.3.2008   

EN

Official Journal of the European Union

C 79/11

1.

Office for Harmonisation in the Internal Market (Trade Marks and Designs)

2.

Merant GmbH

—

set aside the judgment of the Court of First Instance of the European Communities (Third Chamber) of 16 May 2007 in Case T-491/04 and dismiss the action

1.

The judgment is based on an incorrect interpretation of Article 8(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (1) and thus on a serious infringement of the intervener's/appellant's rights.

2.

The infringement is constituted by an incorrect and cursory assessment of the facts on which the decision is based and an extension of the scope of the expression ‘likelihood of confusion’ for the purposes of Article 8(1)(b) of Regulation No 40/94.

3.

The Court of First Instance's interpretation that the conceptual content of the sign ‘MICRO FOCUS’ is ‘small focus’ is not in accordance with the general principles governing the issue of likelihood of confusion. The concept can only be interpreted in that way if the grammatical rules of the German language are incorrectly applied. On the basis of that interpretation of the sign ‘MICRO FOCUS’ the Court arrived at the incorrect finding that only the figurative element ‘Focus’ of the word/figurative sign ‘MICRO FOCUS’ should be compared with the sign ‘FOCUS’ in respect of which registration is sought. Building on that interpretation, the Court then erred in law in finding that there was a likelihood of confusion. If the Court had considered the whole of the word/figurative sign ‘MICRO FOCUS’, it would have correctly interpreted Article 8(1)(b) of Regulation No 40/94.