Action brought on 9 June 2008 - Habanos v OHIM - Tabacos de Centroamérica

(Case T -207/08)

Language in which the application was lodged: Spanish

Parties

Applicant: Corporación Habanos, SA (Ciudad de la Habana, Cuba) (represented by: V. Gil Vega and A. Luiz López, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Tabacos de Centroamérica, SL (Pozuelo de Alarcón, Spain)

Form of order sought

Annul the decision of the Second Board of Appeal of the OHIM of 31 March 2008, and declare that there is a similarity, and a likelihood of confusion, between the composite mark KIOWA and the earlier composite marks COHIBA, which designate identical profits, and a intent, on the part of the applicant for registration, of undue profit from/detriment to the distinctive character and or the reputation of the earlier COHIBA marks cited, and thus refuse registration of the Community mark No 3.963.931 KIOWA (composite); or, in the alternative, annul the decision of the OHIM referred to, and order that the file be sent back to the Second Board of Appeal of the OHIM so that the claims and evidence relating to Article 8(5) of Regulation 40/94 be analysed and examined, and

order OHIM to pay the costs of all instances, including the fees of the applicant's representatives.

Pleas in law and main arguments

Applicant for a Community trade mark: Tabacos de Centroamérica, SL

Community trade mark concerned: Figurative mark 'KIOWA' in respect of goods in Class 34 (application No.3.963.931)

Proprietor of the mark or sign cited in the opposition proceedings: Corporación Habanos, SA, which operates under the business name of Habanos, SA.

Mark or sign cited in opposition: Figurative mark 'COHIBA' (Community mark No. 3.323.292), word mark 'COHIBA' (Spanish mark No. 1.271.173) and the figurative mark 'COHIBA' (Spanish mark No. 2.052.344) in respect of products in Class 34.

Decision of the Opposition Division: Dismissal of the opposition.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: In particular, a high level of similarity between the opposing marks, resulting in a risk of confusion.

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