Action brought on 9 June 2011 - Duscholux Ibérica v OHIM - Duschprodukter i Skandinavien (duschy)

(Case T-295/11)

Language in which the application was lodged: English

Parties

Applicant: Duscholux Ibérica, SA (Barcelona, Spain) (represented by: J. Carbonell Callicó, lawyer)

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

Other party to the proceedings before the Board of Appeal: Duschprodukter i Skandinavien AB (Hisings Backa, Sweden)

Form of order sought

Modify the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 March 2011 in case R 662/2010-1;

Subordinately, and only in the case the former claim would be rejected, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 March 2011 in case R 662/2010-1;

Order the defendant and the other party to the proceedings before the Board of Appeal to pay the costs.

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 international figurative mark "duschy", for goods in classes 11 and 20 - Community trade mark application No W927073

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

Mark or sign cited in opposition: Community trade mark registration No 2116820, of the figurative mark "DUSCHO Harmony", for goods in classes 6, 11 and 19

Decision of the Opposition Division: Partially upheld the opposition

Decision of the Board of Appeal: Annulled the contested decision

Pleas in law: Infringement of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, related to the right to fair trial; infringement of Articles 75 and 76 of Council Regulation No 207/2009, because the Board of Appeal disregarded facts and evidences that were submitted in due time by the applicant; and, infringement of Article 8(1)(b) of Council Regulation No 207/2009, because the Board of Appeal wrongly found that there was no risk of confusion between the conflicting trademarks.

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