Action brought on 17 January 2011 — El Corte Inglés v OHIM — BA&SH (ba&sh)

(Case T-23/11)

2011/C 80/43

Language in which the application was lodged: English

Parties

Applicant: El Corte Inglés, SA (Madrid, Spain) (represented by: M. López Camba and J. Rivas Zurdo, lawyers)

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

Other party to the proceedings before the Board of Appeal: BA&SH SAS (Paris, France)

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: The figurative mark ‘ba&sh’, for goods in classes 3, 14, 18 and 25 — Community trade mark application No 5679758

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

Mark or sign cited in opposition: Spanish trade mark registration No 2211312 of the figurative mark in colour ‘BASS10’, for goods in class 3; Spanish trade mark registration No 2140717 of the figurative mark in colour ‘BASS10’, for goods in class 18; Spanish trade mark registration No 2140718 of the figurative mark in colour ‘BASS10’, for goods in class 25; Spanish trade mark registration No 2223832 of the figurative mark in colour ‘BASS10’, for goods in class 14

Decision of the Opposition Division: Rejected the opposition in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The applicant considers that the contested decision infringes Articles 42(2) and 42(3) of Council Regulation (EC) No 207/2009, as the Board of Appeal wrongly concluded that no genuine use for the goods concerned was proved. The applicant also considers that the contested decision infringes Article 8(1)(b) of Council Regulation (EC) No 207/2009, as the concerned trade marks are confusingly similar and as the products designated by the contested trade mark are partially identical and partially similar to those covered by the earlier registrations.