Judgment of the Court of First Instance (First Chamber) of 16 December 2008 – Deichmann‑Schuhe v OHIM – Design for Woman (DEITECH)

(Case T-86/07)

Community trade mark – Opposition proceedings – Application for figurative Community trade mark DEITECH – Earlier national and international figurative trade marks DEI-tex – Relative ground for refusal – Genuine use of the earlier mark – Article 43(2) and (3) of Regulation (EC) No 40/94

Community trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the earlier mark (Council Regulation No 40/94, Art. 4(2) and (3)) (see paras 36-37)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 22 January 2007 (Case R 791/2006-2) relating to opposition proceedings between Heinrich Deichmann-Schuhe GmbH & Co. KG and Design for Woman SA.

Information relating to the case

Applicant for the Community trade mark:	Design for Woman SA
Community trade mark sought:	Figurative mark DEITECH for goods in Classes 18 and 25 – Application No 3378643
Proprietor of the mark or sign cited in the opposition proceedings:	Heinrich Deichmann-Schuhe GmbH & Co. KG
Marks or signs cited in opposition:	German and international figurative marks DEI-tex for goods in Class 25; opposition to the application for registration being brought against registration for that class
Decision of the Opposition Division:	Opposition dismissed
Decision of the Board of Appeal:	Appeal dismissed

Operative part

The Court:

1. Partially annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 January 2007 (Case R 791/2006-2) in so far as it finds that genuine use of the earlier marks has not been proven in respect of ‘shoes’ in Class 25 covered by the application for a Community trade mark;

2. Dismisses the remainder of the action;

3. Orders OHIM to pay the costs.