ECLI:EU:T:2007:333

Judgment of the Court of First Instance (Fifth Chamber) of 7 November 2007 – Marly v OHIM – Erdal (Top iX) (Case T-57/06) Community trade mark – Opposition proceedings – Application for figurative Community trade mark Top iX – Earlier international word mark TOFIX – Relative ground for refusal – No likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 40/94 – Request for proof of genuine use of the earlier mark submitted for the first time before the Court – Inadmissibility 1.                     Community trade mark – Appeals procedure – Action before the Community judicature (Rules of Procedure of the Court of First Instance, Art. 135(4); Council Regulation No 40/94, Arts 63(2) and 74(1)) (see paras 15-18) 2.                     Community trade mark – Definition and acquisition of the Community trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 88, 90) Re: ACTION brought against the decision of the Second Board of Appeal of OHIM of 14 December 2005 (Case R 1147/2004‑2) concerning opposition proceedings between Erdal GmbH and NV Marly SA. Information relating to the case Applicant for the Community trade mark: NV Marly SA Community trade mark sought: Figurative mark Top iX for goods in Class 3 – Application No 2326072 Proprietor of the mark or sign cited in the opposition proceedings: Erdal GmbH Mark or sign cited in opposition: International word mark TOFIX for goods and services in Classes 3 and 4 Decision of the Opposition Division: Opposition upheld Decision of the Board of Appeal: Appeal dismissed Operative part The Court: 1. Dismisses the action; 2. Orders NV Marly SA to pay the costs.