Action brought on 8 June 2009 - CLARO v OHIM - Telefónica (Claro)

(Case T -225/09)

Language in which the application was lodged: Spanish

Parties

Applicant: CLARO, SA (represented by: E. Armijo Chávarri and A. Castán Pérez-Gómez, lawyers)

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

Other party to the proceedings before the Board of Appeal: Telefónica, SA (Madrid, Spain)

Form of order sought

Annul the decision of the Second Board of Appeal of OHIM of 26 February 2009, in Case R 1079/2008-2, remit the case to that board for it to decide on it afresh, and order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: BCP S/A, now trading as CLARO, S.A., the applicant.

Community trade mark concerned: Three-dimensional trade mark containing the word element "CLARO" (application for registration No 5.229.241), for goods and services in Classes 9 and 38.

Proprietor of the mark or sign cited in the opposition proceedings: Telefónica S.A.

Mark or sign cited in opposition: earlier Community word mark "CLARO" (No 2.017.341), for, inter alia, goods and services in Classes 9 and 38.

Decision of the Opposition Division: Opposition upheld.

Decision of the Board of Appeal: Appeal dismissed as inadmissible, since the applicant had not filed the relevant statement of grounds for the appeal.

Pleas in law: The applicant submits that the contested decision is contrary to the principle of functional continuity between the Opposition Division and the Board of Appeal. It argues that it was obvious that its appeal was against the Opposition Division's decision in its entirety, and that the appeal was based on the misinterpretation by the Opposition Division of Article 8(1)(b) of Regulation (EC) No 207/2009 on the Community trade mark.

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