Action brought on 11 March 2009 — Tubesca v OHIM — Tubos del Mediterráneo (T TUMESA TUBOS DEL MEDITERRANEO S.A.)

(Case T-98/09)

2009/C 102/49

Language in which the application was lodged: French

Parties

Applicant: Tubesca (Ailly-sur-Noye, France) (represented by: F. Greffe, avocat)

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

Other party to the proceedings before the Board of Appeal of OHIM: Tubos del Mediterráneo, SA (Sagunto, Spain)

Form of order sought

Pleas in law and main arguments

Applicant for a Community trade mark: Tubos del Mediterráneo, SA

Community trade mark concerned: Figurative mark ‘T TUMESA TUBOS DEL MEDITERRANEO S.A.’ for goods and services in Classes 6, 35 and 42 — application No 4 085 098

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

Mark or sign cited in opposition: National and international word and figurative marks ‘TUBESCA’ for goods in Classes 6, 19 and 20

Decision of the Opposition Division: Opposition partially upheld; partial refusal to register the mark applied for

Decision of the Board of Appeal: Annulment of the decision of the Opposition Division and rejection of the opposition

Pleas in law: There is a likelihood of confusion between the opposing marks for consumers displaying average attention or end users, especially since the marks ‘TUBESCA’ are well known and highly distinctive.