Judgment of the General Court (Sixth Chamber) of 29 September 2011 – New Yorker SHK Jeans v OHIM – Vallis K. – Vallis A. (FISHBONE)
(Case T-415/09)
Community trade mark – Opposition proceedings – Application for registration of the Community word mark FISHBONE – Earlier national figurative mark FISHBONE BEACHWEAR – Relative ground for refusal – Partial refusal of registration – Genuine use of the earlier mark – Consideration of additional evidence – Statement of reasons – Proof of genuine use – Likelihood of confusion – Article 42(2) and (3) and Article 76(2) of Regulation (EC) No 207/2009 – Second sentence of Rule 22(2) of Regulation (EC) No 2868/95 – Article 75 of Regulation No 207/2009 – First subparagraph and second subparagraph, heading (a), of Article 15(1) and Article 42(2), (3) and (5) of Regulation No 207/2009 – Article 8(1)(b) of Regulation No 207/2009
1. Community trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the earlier mark – Time-limit set by the Office – Submission of additional evidence after expiry of the time-limit where there are new factors – Lawfulness (Commission Regulation No 2868/95, Art. 1, Rule 22(1)) (see paras 27, 31)
2. Community trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the earlier mark – Genuine use – Concept – Criteria for assessment (Council Regulation No 207/09, Art. 42(2) and (3)) (see paras 51-53)
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 registered for identical or similar goods or services – Likelihood of confusion with the earlier mark (Council Regulation No 207/09, Art. 8(1)(b)) (see paras 87, 94, 97)
Re:
| ACTION brought against the decision of the First Board of Appeal of OHIM of 30 July 2009 (Case R 1051/2008-1), concerning opposition proceedings between Vallis K. – Vallis A. & Co. OE and New Yorker SHK Jeans GmbH & Co. KG. |
Operative part
The Court:
2. | | Orders New Yorker SHK Jeans GmbH & Co. KG to pay the costs. |