Appeal brought on 19 January 2009 by ecoblue AG against the judgment of the Court of First Instance (First Chamber) delivered on 12 November 2008 in Case T-281/07: ecoblue AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-23/09 P)

2009/C 90/12

Language of the case: English

Parties

Appellant: ecoblue AG (represented by: C. Osterrieth, T. Schmitz, Rechtsanwälte)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Banco Bilbao Vizcaya Argentaria, SA

Form of order sought

The appellant claims that the Court should:

Pleas in law and main arguments

The appellant maintains that the Court of First Instance misapplied art. 8(1)(b) of the Community Trade Mark Regulation since the conflicting trademarks do not display the minimum degree of similarity required in order to establish a likelihood of confusion.

It is submitted that the Court of First Instance erred in finding that the distinctiveness of the earlier trademark, which formed the basis of the opposition, constitutes an essential requirement of the likelihood of confusion. The CFI failed to consider that aspect of the dispute and merely compared the two opposing trademarks from a visual, phonetic and conceptual perspective, as if the earlier trademark was a mark which enjoyed an average degree of distinctiveness.

It is also submitted that the CFI did not correctly apply the rule that consumers normally attach more importance to the first part of words. Since both word elements, ‘Eco’ and ‘blue’, are equally descriptive, the consumer automatically puts more emphasis on the first word, ‘Eco’, thereby recognising the distinctiveness of both trademarks.

It is further submitted that the CFI erred in law in failing to treat the conceptual difference between the opposing marks as being of primary importance.