Judgment of the General Court (Eighth Chamber) of 17 December 2010 – Amen Corner v OHIM – Comercio Electrónico Ojal (SEVE TROPHY)
(Case T-192/09)
Community trade mark – Opposition proceedings – Application for Community figurative mark SEVE TROPHY – Earlier Community figurative marks Seve Ballesteros Trophy and SEVE TROPHY – Relative grounds for refusal – No similarity of the goods and services – Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) – No unfair advantage taken of or detriment caused to the distinctive character or repute of the earlier marks – Article 8(5) of Regulation No 40/94 (now Article 8(5) of Regulation No 207/2009)
1. Community trade mark – Appeals procedure – Appeals before the Community judicature – Application initiating proceedings – Formal requirements – Brief summary of the pleas in law on which the application is based – Admissibility (Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court, Art. 44(1)(c); Council Regulation No 40/94, Art. 63) (see para. 29)
2. 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 52-59)
3. 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 enjoying a reputation – Protection of well-known earlier mark extended to dissimilar goods or services (Council Regulation No 40/94, Art. 8(5)) (see paras 66-79)
Re:
| ACTION brought against the decision of the Second Board of Appeal of OHIM of 5 March 2009 (Case R 462/2008-2) relating to opposition proceedings between Amen Corner, SA and Comercio Electrónico Ojal, SL. |
Information relating to the case
Applicant for the Community trade mark: | Comercio Electrónico Ojal, SL |
Community trade mark sought: | Figurative mark including the verbal component SEVE TROPHY for goods and services in Classes 3, 9, 14, 18, 25, 28, 35 and 41 – Application No 4617213 |
Proprietor of the mark or sign cited in the opposition proceedings: | Amen Corner, SA |
Mark or sign cited in opposition: | Community figurative trade marks SEVE TROPHY and Seve Ballesteros Trophy (Nos 1541226, 1980341, 2068682 and No 3846235) for goods and services in Classes 3, 14, 25, 28, 35 and 41 |
Decision of the Opposition Division: | Opposition dismissed under Article 8(5) of Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1994 L 11, p. 1) (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1); opposition partially upheld under Article 8(1)(b) of the same regulation |
Decision of the Board of Appeal: | Appeal upheld in part |
Operative part
The Court:
2. | | Orders Amen Corner, SA to pay the costs. |