C-03/03P - appeal from earlier case T-6/01

Matratzen Concord GmbH, formerly Matratzen Concord AG and the Office for Harmonisation in the Internal Market (Trade Marks & Designs)

Appeal brought on 7 January 2003 by Matratzen Concord GmbH, formerly Matratzen Concord AG, against the judgement delivered on 23 October 2002 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-6/01 between Matratzen Concord GmbH, formerly Matratzen Concord AG, and the Office for Harmonisation in the Internal Market (Trade Marks & Designs).

An appeal against the judgement delivered on 23 October 2002 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-6/01 between Matratzen Concord GmbH, formerly Matratzen Concord AG, and the Office for Harmonisation in the Internal Market (Trade Marks & Designs) was brought before the Court Of Justice of the European Communities on 7 January 2003 by Matratzen Concord GmbH, represented by Dr Wolf-W Wodrich, Rechtsanwalt, Huyssenallee 58-64, D-45128 Essen.

The appellant claims that the court should:

• - set aside the judgement of the Court of First Instance of the European Communities of 23 October 2002 in Case T-6/01 (¹),
• - reject the opposition of the other party to the proceedings before the Board of Appeal of 21 April 1998 (OHIM ref: B 32 500),
• - order OHIM and the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings before the Opposition Division and before the Board of Appeal of OHIM, as well as the costs of the proceedings on the action and on this appeal.

Pleas in law and main arguments:

Infringement of Article 8(1)(b) of Regulation No 40/94; the trade mark applied for, 'MATRATZEN Markt CONCORD', which consists of three words and a figurative element, and the opposing earlier trade mark, 'Matratzen', are not similar, but completely different. The Court of First Instance did not base its assessment on the overall impression created by the marks and thus failed to have regard to the principles established in the judgement of the Court of Justice Case C-251/95 (SABEL). The finding that the word 'MATRATZEN' alone is the dominant feature of the trade mark applied for is contrary to the rules of logic and to experience.

Breach of the principle of the free movement of goods (Articles 28 and 30 EC); the opposition based on the earlier mark is an abuse of a formal legal position. This was not sufficiently assessed by the Court of First Instance.