Action brought on 24 January 2005 by Calavo Growers of California against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-53/05)

(2005/C 82/77)

Language in which the application was submitted: Spanish

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (O.H.I.M.) was brought before the Court of First Instance of the European Communities on 24 January 2005 by Calavo Growers of California, represented by Enrique Armijo Chavarri and Antonio Castán Pérez-Gómez, lawyers.

The applicant claims that the Court should:

Pleas in law and main arguments:

On 8 March 2001 Luis Calvo Sanz applied for registration of the figurative mark ‘CALVO’ (No 2.127.132) in respect of products in Classes 29, 30 and 31.

On 21 December 2001 Calavo Growers of California, the applicant in these proceedings, lodged a notice of opposition against the earlier application, on the basis of the word Community trade mark ‘CALAVO’ (No 102.822) registered for products in Classes 29 and 31. This notice of opposition fell into two parts. The first contained a form in Spanish, indicating the language of the opposition proceedings, the application for registration under challenge, the opponent and its representative, the current account for payment of the fee and the earlier Community trade mark. This first part also stated that the opposition was based on ‘all the products/services in respect of which the earlier trade mark has been registered/applied for’, and on ‘an earlier trade mark and the risk of confusion’.

The second part of the notice of opposition contained a statement of the grounds of opposition. That part of the notice was drafted in English.

On 18 December 2003 the Opposition Division gave its decision No 2927/2003, upholding in part the applicant's opposition. That decision did not take into consideration the claims made in English, because they had not been translated into the language of the case within the period prescribed for that purpose.

The competent Board of Appeal upheld the action brought by the applicant for a Community trade mark against that decision, on the ground that the Opposition Division had no jurisdiction to rule on the opposition, because the applicant's arguments on the merits of the case were inadmissible, for want of translation into the language of the case.

In support of its claims, the applicant alleges infringement of Articles 42(3) and 74(1) of Regulation (European Communities) No 40/94 on the Community trade mark, in conjunction with Rule 20(3) of the Implementing Regulations.