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Document C2004/106/140

Case T-39/04: Actionbrought on 5 February 2004 by Orsay GmbH againstthe Office for Harmonisation in the Internal Market (Trade Marks and Designs)

IO C 106, 30.4.2004, p. 69–70 (ES, DA, DE, EL, EN, FR, IT, NL, PT, FI, SV)

30.4.2004   

EN

Official Journal of the European Union

C 106/69

Action brought on 5 February 2004 by Orsay GmbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-39/04)

(2004/C 106/140)

Language of the case to be determined pursuant to Article 131(2) of the Rules of Procedure language in which the application was submitted: German

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 5 February 2004 by Orsay GmbH, Willstätt (Germany), represented by D. von Schultz, lawyer.

José Jiménez Arellano S.A., Madrid, was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

—

annul Decision R 394/2002-4 of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 3 November 2003 and Decision 405/2002 of the Opposition Division of the Office for Harmonisation in the Internal Market of 25 February 2002 insofar as registration of the Community trade mark sought in Application No 1 042 613 in respect of articles of clothing; boots, shoes and slippers; headgear was refused on the basis of Opposition No B 242 059;

—

declare that the Office for Harmonisation in the Internal Market is to register the mark ‘O orsay’, sought in Application No 1 042 613 as a Community trade mark in respect of articles of clothing; boots, shoes and slippers; headgear in Class 25;

—

order the office for Harmonisation in the Internal Market to pay the costs of the opposition and appeal proceedings and of the present action.

Pleas in law and main arguments:

Applicant for Community trade mark:

The applicant

Community trade mark sought:

The figurative mark ‘O orsay’ for goods in Classes 23, 24 and 25 (yarn, woven and knitted fabric; bed and table covers; articles of clothing; boots, shoes and slippers; headgear) – Application No 1 042 613

Proprietor of mark or sign cited in the opposition proceedings:

José Jiménez Arellano S.A.

Mark or sign cited in opposition.

The Spanish and Portuguese figurative mark ‘D'ORSAY’ for, inter alia, goods in Class 25

Decision of the Opposition Division:

Refusal of the application for registration in respect of the goods ‘articles of clothing; boots, shoes and slippers; headgear’. Rejection of the remainder of the opposition.

Decision of the Board of Appeal:

Dismissal of the applicant's appeal

Pleas in law:

—

The Office's decision was adopted in breach of Article 8(1) of Regulation (EC) No 40/94.

—

There can be no likelihood of confusion in aural terms where the opposed marks ‘O orsay’ and ‘D'ORSAY’ are compared.

—

Both a likelihood of confusion as a result of the typography and a likelihood of association can be ruled out.
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