The Curia website earlier this week posted information concerning some forthcoming appeals to the European Court of Justice. These appeals are in

* Case C-344/07 P Focus Magazin Verlag GmbH against the judgment of the Court of First Instance in Case T-491/04 Merant GmbH v Office for Harmonisation in the Internal Market, Focus Magazin Verlag GmbH. Focus complains that there has been 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, adding that 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".

"It was not permissible for the Court of First Instance to divide the verbal composition submitted in the application into its constituent parts and to find, on that basis, that the mark was not eligible for protection. Dividing it up in this way does not correspond to how the 'normal' class of persons assesses and interprets the mark when it sees it as a whole. Moreover, the Court of First Instance was wrong to base its finding that the mark lacked distinctive character and that there was a need to keep the term free on the observation that the verbal composition consisted of parts which, in the course of trade, were normally used to explain the purpose and function of the services covered. The relevant trade circles would not, however, recognise any immediately obvious meaning in the application for a Community trade mark 'manufacturing score card', consisting of a combination of three English words. Consequently, the mark applied for has the minimum distinctive character required by Article 7(1)(b) of the Community Trade Mark Regulation and also does not designate characteristics of goods or services in accordance with Article 7(1)(c) of the Community Trade Mark Regulation".

"Neither in the decision of the Board of Appeal nor in the judgment under appeal of the Court of First Instance were any findings set out or explanations given regarding the shapes which OHIM or the Court of First Instance recognised as being common on the market and in what ways the shape applied for would have to differ from common shapes on the market to be found to be distinctive. In the absence of such findings or explanations it is not conceivable how OHIM or the Court of First Instance could have come to the conclusion that the shape applied for was not distinctive".

"Contrary to the view of the Court of First Instance in the judgment under appeal, the appellant claims that the shape applied for is distinctive since it is significantly different from the normal shapes found on the market and is not merely a variant of such shapes. Among the relevant public the shape applied for can be recognised and indeed is recognisable as an indication of origin irrespective of its use and without further enquiries or thought".