Order of the Court (Fifth Chamber) of 28 March 2011 – Herhof v OHIM

(Case C-418/10 P)

Appeal – Community trade mark – Regulation (EC) No 40/94 – Article 8(1)(b) – Opposition proceedings – Earlier mark STABILAT – Figurative sign ‘stabilator’ – Relative ground for refusal – Likelihood of confusion – Absence of similarity of the goods and services

1. Community trade mark – Appeals procedure – Action before the Union judicature – Jurisdiction of the General Court – Review of the lawfulness of decisions of the Boards of Appeal – Review of the legal classificaiton made of the facts of the case – Included (Council Regulation No 40/94, Art. 63) (see paras 47-48)

2. Appeals – Grounds – Incorrect assessment of the facts and evidence – Inadmissibility – Review by the Court of the assessment of the facts and evidence – Possible only where the clear sense of the evidence has been distorted – Plea alleging such distortion (Art. 256 TFEU; Statute of the Court of Justice, Art. 58(1); Rules of Procedure of the Court of Justice, Art. 112(1)(1)(c)) (see paras 66-67)

Re:

Operative part

1.The appeal is dismissed.

2.Herhof-Verwaltungsgesellschaft mbH is ordered to pay the costs.