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Document C2006/326/146

    Case T-319/06: Action brought on 27 November 2006 — Moreira da Fonseca v OHIM — General Óptica (GENERAL OPTICA)

    OJ C 326, 30.12.2006, p. 70–71 (ES, CS, DA, DE, ET, EL, EN, FR, IT, LV, LT, HU, NL, PL, PT, SK, SL, FI, SV)

    30.12.2006   

    EN

    Official Journal of the European Union

    C 326/70

    Action brought on 27 November 2006 — Moreira da Fonseca v OHIM — General Óptica (GENERAL OPTICA)

    (Case T-319/06)

    (2006/C 326/146)

    Language in which the application was lodged: English

    Parties

    Applicant: Alberto Jorge Moreira da Fonseca Lda (Santo Tirso, Portugal) (represented by: M. Oehen Mendes, lawyer)

    Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

    Other party to the proceedings before the Board of Appeal: General Óptica SA (Barcelona, Spain)

    Form of order sought

    —

    Annul the decision of the First Board of Appeal of OHIM of 8 August 2006 notified to the applicant 27 September 2006, in cancellation proceedings No 828C (Case No R 944/2005-1) and consequently declare Community trade mark No 2 436 798‘GENERAL OPTICA’ filed on 5 November 2001 and registered on 20 November 2002, as invalid, or in the alternative, revoked;

    —

    order the defendant to pay the costs.

    Pleas in law and main arguments

    Registered Community trade mark subject of the application for a declaration of invalidity: The figurative mark ‘GENERAL OPTICA’ for services in class 42 (Opticians' services) — Community trade mark No 2 436 798

    Proprietor of the Community trade mark: General Óptica SA

    Party requesting the declaration of invalidity of the Community trade mark: The applicant

    Trade mark right of the party requesting the declaration of invalidity: The earlier national trade name ‘Generalóptica’ for import and retail sale of optical, precision and photographic apparatus

    Decision of the Cancellation Division: Rejection of the request for a declaration of invalidity

    Decision of the Board of Appeal: Dismissal of the appeal

    Pleas in law: Infringement of among others Article 8(1) and (4) of Council Regulation No 40/94 as there is a likelihood of confusion between the two signs and the applicant's sign is granted national protection.

    Infringement of Rule 22 of Commission Regulation No 2868/95 as OHIM omitted its duty to ask the applicant to present evidence of the earlier use invoked.

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