Action brought on 8 December 2008 - Tuzzi fashion v OHIM - El Corte Inglés (Emidio Tucci)

(Case T-535/08)

Language in which the application was lodged: English

Parties

Applicant: Tuzzi fashion GmbH (Fulda, Germany) (represented by: R. Kunze and G. Würtenberger, lawyers)

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

Other party to the proceedings before the Board of Appeal: El Corte Inglés, SA (Madrid, 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 23 September 2008 in case R 1561/2007-2; and

Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark "Emidio Tucci", for goods in class 25

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

Mark or sign cited: German trade mark registration No 1 078 843 of the word mark "TUZZI" for goods in class 25; International trade mark registration No 496 835 with effect in Austria, France, the Benelux countries and Poland of the word mark "TUZZI" for goods in class 25; Company name "TUZZI FASHION GMBH" used in the course of trade in Germany for clothing.

Decision of the Opposition Division: Rejected the opposition in its entirety

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1) and (4) of Council Regulation 40/94 as the Board of Appeal wrongly assessed the likelihood of confusion between the trade marks concerned; Infringement of Article 73 of Council Regulation 40/94 as the Board of Appeal failed to address in a comprehensive manner the arguments put forward by the applicant and to objectively state the reasons on which its decision has been based; Infringement of Article 74 of Council Regulation 40/94 as the Board of Appeal failed to restrict itself in its examination to the facts, evidence and arguments put forward by the parties; Infringement of Article 79 of Council Regulation 40/94 since in its assessment of the defence of abuse of rights raised by the applicant the Board of Appeal failed to take into account general principles of procedural law recognized in the Member States.

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