Action brought on 1 December 2008 - Agatha Ruiz de la Prada de Sentmenat v OHIM - Mary Quant Cosmetics Japan (AGATHA RUIZ DE LA PRADA)

(Case T -523/08)

Language in which the application was lodged: Spanish

Parties

Applicant: Agatha Ruiz de la Prada de Sentmenat (Madrid, Spain) (represented by: R. Bercovitz Álvarez, 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: Mary Quant Cosmetics Japan Ltd (Tokyo, Japan)

Form of order sought

Paragraphs 1 and 3 of the contested decision be annulled and replaced with a different decision in which registration of Community trade mark No 3.291.234 is granted in respect of all the goods requested in Class 3 of the Classification (including 'soaps; perfumery, essential oils, cosmetics, hair lotions') and MARY QUANT Cosmetics Japan Ltd. be ordered to pay the costs of the opposition proceedings, and

the defendant, and any intervening or other party, be ordered to pay the costs of the present proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Agatha Ruiz de la Prada de Sentmenat

Community trade mark concerned: Figurative mark representing a pink flower with a yellow centre on a light green background with the wording AGATHA RUIZ DE LA PRADA (application no 3.291.234) for goods in, inter alia, Classes 3, 5, 14 and 21.

Proprietor of the mark or sign cited in the opposition proceedings: MARY QUANT Cosmetics Japan Ltd.

Mark or sign cited in opposition: Figurative mark representing a black flower with a black centre surrounded by a white outline: British trade marks for goods in Classes 3 and 5, and a Community trade mark for goods in Classes 3 and 21.

Decision of the Opposition Division: The opposition was rejected.

Decision of the Board of Appeal: The appeal was upheld in part.

Pleas in law: Incorrect application of Article 8(1)(b) of Regulation (EC) No 40/94 on the Community trade mark.

____________