Action brought on 8 August 2013 – Le Comptoir d'Épicure v OHIM - A-Rosa Akademie (da rosa)

(Case T -405/13)

Language in which the application was lodged: French

Parties

Applicant: Le Comptoir d'Épicure (Paris, France) (represented by: S. Arnaud, lawyer)

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

Other party to the proceedings before the Board of Appeal:A-Rosa Akademie GmbH (Rostock, Germany)

Form of order sought

The applicant claims that the Court should:

annul the decision of the Fifth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 May 2013 in case R 1195/2012-5; and

order OHIM and A-Rosa Akademie GmbH to pay the costs

Pleas in law and main arguments

Applicant for a Community trade mark: Le Comptoir d'Épicure

Community trade mark concerned: The international registration designating the European Union of the figurative mark with word elements ‘da rosa’ for goods and services in Classes 29, 30 and 43 – International registration No 1 047 095 designating the European Union

Proprietor of the mark or sign cited in the opposition proceedings: A-Rosa Akademie GmbH

Mark or sign cited in opposition: National, international and Community word marks ‘aROSA’ and national and international figurative marks with the word elements ‘aROSA Lust auf Schiff’

Decision of the Opposition Division: The opposition is upheld in part

Decision of the Board of Appeal: The action is dismissed

Pleas in law:    

First plea, alleging a contradiction in the reasoning    , if not an excess of authority;

Second plea, alleging infringement of Articles 5, 34(1) and 35 of Regulation No 207/2009;

Third plea, alleging infringement of Article 42(2) of Regulation No 207/2009, of Rule 22 of Regulation No 2868/95, and of Article 78(1) of Regulation No 207/2009;

Fourth plea, alleging infringement of general principles of law, of the hierarchy of legal rules and a manifest error of assessment;

Fifth plea, alleging infringement of Article 8(1)(b) of Regulation No 207/2009;

Sixth plea, alleging infringement of Article 6 of the European Convention on Human Rights, Article 75 of Regulation No 207/2009 and Rule 22(2) and (3) of Regulation No 2868/95;

Seventh plea, alleging a manifest error concerning the relevant public and the assessment of the signs;

Eighth plea: the distinctive character of the earlier mark in Classes 39, 43 and 44.