Action brought on 23 March 2006 - Mülhens v OHIM

(Case T-93/06)

Language in which the application was lodged: English

Parties

Applicant: Mülhens GmbH & Co. KG (Cologne, Germany) (represented by: T. Schulte-Beckhausen, lawyer)

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

Other party to the proceedings before the Board of Appeal: S.A. Spa Monopole, Compagnie fermière de Spa (Spa, Belgium)

Form of order sought

Annul the decision of the second Board of Appeal of the defendant of 11 January 2006 (Case No 2746/2004);

order the defendant to bear the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: Mülhens GmbH & Co. KG

Community trade mark concerned: the word mark 'MINERAL SPA' for goods in class 3 (soaps, perfumeries, essential oils, preparations for body and beauty care, preparations for the hair, dentifrices)

Proprietor of the mark or sign cited in the opposition proceedings: S.A. Spa Monopole, Compagnie fermière de SPA

Mark or sign cited: several trade marks containing the word 'SPA' and, in particular, the Benelux word trade mark 'SPA' for goods in class 32

Decision of the Opposition Division: rejection of the application for registration of the mark

Decision of the Board of Appeal: dismissal of the appeal

Pleas in law: Misapplication of Article 8(5) of Regulation 40/94.

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