6.10.2012   

EN

Official Journal of the European Union

C 303/20

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Set aside in part the judgment of the General Court of the European Union in so far as that Court dismissed the action brought by I Marchi Italiani Srl and ordered it to pay the costs, with the exception of those relating to the discontinuance;

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grant in part the forms of order sought at first instance and, consequently, annul the decision of the Second Board of Appeal of OHIM of 9 January 2009 — notified to the appellant on 30 January 2009 — in proceedings R 502/2008 between I Marchi Italiani Srl and Osra SA, which upheld the decision of the Cancellation Division which had allowed the application for revocation and declaration of invalidity of the mark ‘B Antonio Basile 1952’ following the action brought by Osra S.A;

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order OHIM to pay the costs.

1.

Infringement of Article 135(4) of the Rules of Procedure of the General Court, in so far as the General Court erred in declaring that the documents produced by I Marchi Italiani Srl must be excluded without it being necessary to assess their probative value, and that the arguments relating to the reputation of the contested mark and to the infringement of the principle of good faith were inadmissible.

2.

Infringement of Article 53(2) of Regulation No 40/94 (1) (now Article 54(2) of Regulation No 207/2009), (2) in so far as the General Court erred in declaring that less than five years had elapsed between the date of registration of the (contested) trade mark and the date when the application for a declaration of invalidity was filed and that, therefore, the date on which the Community trade mark application was filed was irrelevant.

3.

Infringement of Article 8(1)(b) of Regulation No 40/94, in so far as the General Court erred in finding that the marks at issue were similar and therefore misapplied that provision by concluding that there was a likelihood of confusion.