Action brought on 30 September 2009 - SPAR v OHIM - SPA Group Europe (SPA GROUP)

(Case T -378/09)

Language in which the application was lodged: German

Parties

Applicant: SPAR Handelsgesellschaft mbH (Schenefeld) (represented by: R. Kaase and J.-C. Plate, 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: SPA Group Europe Ltd & Co. KG (Nürnberg, Germany)

Form of order sought

Annul the decision of the First Board of Appeal of Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 16 July 2009 in case R 123/2008-1 for being incompatible with Article 8(1)(b) of Regulation (EC) No 40/94 ¹;

Order OHIM to pay the costs incurred both in these proceedings and in the opposition and appeal proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: SPA Group Europe Ltd & Co. KG

Community trade mark concerned: the word mark 'SPA GROUP' for goods and services in Classes 16, 35, 41 and 44 (Application No 4 038 171)

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

Mark or sign cited in opposition: the German figurative mark 'SPAR' for goods and services in Classes 1 to 36 and 38 to 41 (No 30 108 039.9) and the figurative German mark 'SPAR' for services in Classes 35, 36 and 39 (No 30 404 087.8)

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) Council Regulation 40/94, since there is a likelihood of confusion between the two marks at issue

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¹ - Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).