Action brought on 19 October 2009 - São Paulo Alpargatas v OHIM - Fischer (BAHANIAS LAS ORIGINALES)

(Case T-422/09)

Language in which the application was lodged: Spanish

Parties

Applicant: São Paulo Alpargatas, SA (represented by: P. Merino Baylos, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Enrique Fischer

Form of order sought

-    uphold the application and annul the decision of the Second Board of Appeal of OHIM of 17 August 2009, with all the appropriate consequences under Community law;

-    order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Enrique Fischer

Community trade mark concerned: Figurative mark containing the verbal component "BAHIANAS (LAS ORIGINALES)" (Application No 5.024.591) for goods in class 25.

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

Mark or sign cited in opposition: Community figurative mark containing the verbal component "havaianas" (No 3.772.431), Spanish figurative mark containing the verbal component "havaianas" (M 2.341.904) and Spanish word mark "HAVAIANAS" (M 2.341.905), all for goods in class 25.

Decision of the Opposition Division: Refusal of the application for a Community mark in its entirety.

Decision of the Board of Appeal: Annulment of the contested decision.

Pleas in law: Incorrect interpretation of Article 8(1)(b) of Regulation No 207/2009.

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