Action brought on 25 January 2012 - Herbacin cosmetic v OHIM - Laboratoire Garnier (HERBA SHINE)

(Case T-34/12)

Language in which the application was lodged: German

Parties

Applicant: Herbacin cosmetic GmbH (Wutha-Farnroda, Germany) (represented by: J. Eberhardt, lawyer)

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

Other party to the proceedings before the Board of Appeal: Laboratoire Garnier et Cie (Paris, France)

Form of order sought

The applicant claims that the Court should:

annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 November 2011 in Case R 2255/2010-1;

order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Laboratoire Garnier et Cie

Community trade mark concerned: the word mark 'HERBA SHINE' for goods in Class 3

Proprietor of the mark or sign cited in the opposition proceedings: the applicant

Mark or sign cited in opposition: the national and Community word mark and international registration 'HERBACIN' for goods in Class 3

Decision of the Opposition Division: the opposition was upheld

Decision of the Board of Appeal: the appeal was upheld

Pleas in law: Infringement of the first sentence of Article 42(2) of Regulation No 207/2009 in that, at the time of the first-instance opposition decision, an effective request for proof of use on the part of the applicant no longer existed; infringement of point (b) of the second sentence of Article 15(1) of Regulation No 207/2009 in that the Board of Appeal of OHIM erred in law in disregarding considerable export turnover under the opposing mark 'HERBACIN'; and infringement of the first sentence of Article 15(1) of Regulation No 207/2009 in that the proof of use submitted as regards customers within the Community was incorrectly assessed.

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