Action brought on 30 March 2006 - Phildar v OHIM

(Case T-99/06)

Language in which the application was lodged: English

Parties

Applicant: Phildar SA (Roubaix, France) (represented by: E. Baud, lawyer)

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

Other party to the proceedings before the Board of Appeal: Comercial Jacinto Parera SA (Barcelona, Spain)

Form of order sought

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of January 16, 2006 in Case R 245/2004-2;

subsidiarily, and if the Court decides not to annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Marked (Trade Marks and Designs) of January 16, 2006 in Case R 245/2004-2, it should remit the case to the Office for Harmonisation in the Internal Market (Trade Marks and Designs) for consideration of the opposition against the registration of the CTM application "FILDOR" No. 831 834 notably on the basis of the earlier French word trade mark "FILDOR" No. 744 927 owned by the applicant;

order that the costs of the proceedings be borne by the defendant and, if appropriate, the intervener.

Pleas in law and main arguments

Applicant for the Community trade mark: Comercial Jacinto Parera SA

Community trade mark concerned: The word mark "FILDOR" for goods in classes 22, 23, 24, 25 and 26 - application No 831 834

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

Mark or sign cited: The national and international word and figurative marks "FILDOR" and "PHILDAR" for goods in classes 22, 23, 24, 25 and 26

Decision of the Opposition Division: Rejection of the application for the trade mark in question

Decision of the Board of Appeal: Annulment of the Opposition Division's decision

Pleas in law: Infringement of Articles 8(1)(b), 62 and 73 of Council Regulation No 40/94 as the conflicting trade marks are visually and phonetically similar, as the applicant did not have the opportunity to present its comments on the assessment of the modes of purchase of the goods in question, and as the Board of Appeal rejected the opposition on the basis of the earlier national figurative mark "PHILDAR" without examining the earlier national word mark "FILDOR".

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