Notice for the OJ
Action brought on 5 February 2004 by Orsay GmbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
(Case T-39/04)
Language of the case
to be determined pursuant to Article 131(2) of the Rules of Procedure
- language in which the application was submitted: German
An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 5 February 2004 by Orsay GmbH, Willstätt (Germany), represented by D. von Schultz, lawyer.
José Jiménez Arellano S.A., Madrid, was also a party to the proceedings before the Board of Appeal.
The applicant claims that the Court should:
- annul Decision R 394/2002-4 of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 3 November 2003 and Decision 405/2002 of the Opposition Division of the Office for Harmonisation in the Internal Market of 25 February 2002 insofar as registration of the Community trade mark sought in Application No 1 042 613 in respect of articles of clothing; boots, shoes and slippers; headgear was refused on the basis of Opposition No B 242 059;
- declare that the Office for Harmonisation in the Internal Market is to register the mark "O orsay", sought in Application No 1 042 613 as a Community trade mark in respect of articles of clothing; boots, shoes and slippers; headgear in Class 25;
- order the office for Harmonisation in the Internal Market to pay the costs of the opposition and appeal proceedings and of the present action.
Pleas in law and main arguments:
Applicant for Community trade mark:The applicant
Community trade mark sought:The figurative mark "O orsay" for goods in Classes 23, 24 and 25 (yarn, woven and knitted fabric; bed and table covers; articles of clothing; boots, shoes and slippers; headgear) - Application No 1 042 613
Proprietor of mark or sign cited in the opposition proceedings:
José Jiménez Arellano S.A.
Mark or sign cited in opposition.The Spanish and Portuguese figurative mark "D'ORSAY" for, inter alia, goods in Class 25
Decision of the Opposition Division:Refusal of the application for registration in respect of the goods "articles of clothing; boots, shoes and slippers; headgear". Rejection of the remainder of the opposition.
Decision of the Board of Appeal:Dismissal of the applicant's appeal
Pleas in law:The Office's decision was adopted in breach of Article 8(1) of Regulation (EC) No 40/94.
There can be no likelihood of confusion in aural terms where the opposed marks "O orsay" and "D'ORSAY" are compared.
Both a likelihood of confusion as a result of the typography and a likelihood of association can be ruled out.
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