Sanz and sensibility

Sanz and sensibility

Yesterday the Court of First Instance of the European Communities gave its ruling in Case T‑53/05 Calavo Growers Inc.v OHIM, Luis Calvo Sanz SA, esta. Luis Calvo applied to register a sign (above, right) as a Community trade mark for various edibles and potables in Classes 29 to 31. Calavo opposed, arguing that there was a likelihood of confusion between that sign and its own earlier Community word mark CALAVO for goods in Classes 29 and 31. The language of the proceedings was Spanish, but an explanation in English was submitted in relation to the grounds of opposition. While allowing the opposition in part, the Opposition Division refused to consider the English grounds, since they were not in the language of the proceedings and the deadline had passed for their submission in Spanish.

Luis Sanz appealed to the Board of Appeal, which allowed the appeal and dismissed the opposition in its entirety. The Board considered that it was for an opponent to submit and prove the grounds on which an opposition is based. If an opponent fails to satisfy that requirement, OHIM cannot in compensate for any procedural deficiency since it was not competent to undertake an examination of its own motion, had to be impartial and could act at the same time as judge and party.

Calavo has now appealed successfully to the CFI, which annulled the Board's decision. The Board was correct to say that the explanation of grounds, written in English, could not be taken into account by the Opposition Division. The question was, however, whether the Opposition Division could, in those circumstances, legitimately examine the substance of the opposition. It could, ruled the CFI, and could reach the conclusion that there was, in part, a likelihood of confusion even on the evidence before it.

The IPKat notes how carefully the CFI phrased its reasoning, distinguishing its own earlier case law in Case T‑311/01 Éditions Albert René v OHIM – Trucco (Starix) [2003] ECR II‑4625 and Case T‑66/03 ‘Dire Mullen sinds 1818’ v OHIM – Nabeiro Silveria (Galáxia) [2004] ECR II‑1765.

Read about Calavo's evolution from the California Avocado Growers' Exchange way back in 1924
Visit Calvo's website here
Alligator pear recipes here and here