Action brought on 23 March 2012 — Spa Monopole v OHIM — Orly International (SPARITUAL)

(Case T-131/12)

2012/C 165/41

Language in which the application was lodged: French

Parties

Applicant: Spa Monopole compagnie fermière de Spa SA/NV (Spa, Belgium) (represented by: L. De Brouwer, E. Cornu and É. De Gryse, lawyers)

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

Other party to the proceedings before the Board of Appeal: Orly International, Inc (Van Nuys, USA)

Form of order sought

Pleas in law and main arguments

Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: Word mark ‘SPARITUAL’ for goods in Class 3 — Community trade mark applied for No 3631884

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited in opposition: Benelux registrations of the word marks ‘SPA’ and ‘Les Thermes de Spa’ for goods and services in Classes 3, 32 and 42

Decision of the Opposition Division: Rejection of the application for a Community trade mark

Decision of the Board of Appeal: Annulment of the contested decision and rejection of the opposition

Pleas in law: Infringement of Article 8(5) of Regulation No 207/2009 in the assessment of the reputation of the word mark ‘SPA’ in Class 32 and infringement of Article 8(5) of Regulation No 207/2009 in the assessment of the likelihood that unfair advantage would be taken of the repute of the mark ‘SPA’.