Judgment of the Court of First Instance (Fourth Chamber) of 8 July 2009 – Laboratorios Del Dr. Esteve v OHIM – Ester C (ESTER-E)

(Case T-230/07)

Community trade mark – Opposition proceedings – Application for Community word mark ESTER-E – Earlier Community figurative mark ESTEVE – Relative ground for refusal – No likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009

Community trade mark – Definition and acquisition of the Community trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Likelihood of confusion with the earlier mark (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 39, 41, 46, 48, 56, 60)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 17 April 2007 (Case R 737/2006‑2) concerning opposition proceedings between Laboratorios Del Dr. Esteve, SA and The Ester C Company.

Information relating to the case

Applicant for the Community trade mark:	The Ester C Company
Community trade mark sought:	The Community word mark ‘ESTER-E’ for goods and services in Classes 3 and 5 – Application No 3163946
Proprietor of the mark or sign cited in the opposition proceedings:	Laboratorios Del Dr. Esteve, SA
Mark or sign cited in opposition:	The Community figurative mark ‘ESTEVE’ for goods in Classes 1, 5 and 42 and the national figurative marks ‘ESTEVE’ and ‘ESTEVE-Laboratorio Del Dr. Esteve S.A.’ for goods in Class 5
Decision of the Opposition Division:	Opposition upheld
Decision of the Board of Appeal:	Opposition dismissed

Operative part

The Court:

1.      Dismisses the action;

2.      Orders Laboratorios Del Dr. Esteve, SA to pay the costs.