Action brought on 26 May 2006 - Marie Claire v OHIM - Marie Claire Album (MARIE CLAIRE)

(Case T -148/06)

Language in which the application was lodged: Spanish

Parties

Applicant: Marie Claire (Castellón, Spain) (represented by: T. Fernández Mateos and T. Marín Bataller, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Marie Claire Album SA.

Form of order sought

annul the decision of the Second Board of Appeal of 6 March 2006 in Case R-530/2004-2;

declare, accordingly, that the Community trade mark applied for is not caught by the prohibitions in Article 8(5)CMR 40/94, since such provisions do not apply to this case;

declare that the Community trade mark applied for, No 77.834 'MARIE CLAIRE', does not take unfair advantage or is not detrimental to the distinctive character or the reputation of the earlier opposing mark without due cause;

declare that the prohibitions in Article 8(1)(b) CMR 40/94 are not applicable to the Community trade mark applied for, as already held in both the decision of the Opposition Division and the Second Board of Appeal of OHIM;

-    allow registration of Community trade mark No 77.834 'MARIE CLAIRE' in order to distinguish 'Swimwear; lingerie and underwear', in Class 25 of the International Classification, for the benefit of the applicant;

-    order OHIM to pay the costs together with any party which appears as a third party to these proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Marie Claire.

Community trade mark concerned: Word mark 'MARIE CLAIRE' for goods in Class 25 - application No 2 389 567.

Proprietor of the mark or sign cited in the opposition proceedings: Marie Claire Album SA.

Mark or sign cited in opposition: National and international word and figurative marks 'MARIE CLAIRE' for goods and services in Classes 1, 3, 14, 16, 18, 20-22, 24-28, 41 and 42.

Decision of the Opposition Division: Opposition dismissed.

Decision of the Board of Appeal: Opposition Division decision annulled and opposition upheld.

Pleas in law: Infringement of Article 8(1)(b) and 8(5) of Regulation (EC) No 40/94.

____________