Judgment of the General Court (First Chamber) of 16 September 2013 —
Gitana v OHIM — Teddy (GITANA)
(Case T‑569/11)
Community trade mark — Opposition proceedings — Application for the Community figurative mark GITANA — Earlier Community figurative mark KiTANA — Proof of genuine use of the earlier mark — Article 42(2) and (3) of Regulation (EC) No 207/2009 — Relative ground for refusal — Likelihood of confusion — Identity or similarity of the goods — Similarity of the signs — Article 8(1)(b) of Regulation No 207/2009 — Partial refusal of registration
1. Community trade mark — Appeals procedure — Action before the EU judicature — Jurisdiction of the General Court — Re-evaluation of the facts in the light of evidence produced for the first time before it — Exclusion (Rules of Procedure of the General Court, Art. 135(4); Council Regulation No 207/2009, Art. 65) (see para. 22)
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 — Assessment of the likelihood of confusion — Criteria (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 34, 35, 68)
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 — Figurative marks GITANA and KiTANA (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 37, 46, 58, 62-64, 67, 69)
4. Community trade mark — Decisions of the Office — Legality — OHIM’ s previous decision-making practice — Principle of non-discrimination — No effect (Council Regulation No 207/2009) (see paras 48, 59)
5. 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 — Similarity of the marks concerned — Criteria for assessment — Complex mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 50, 51)
Re:
| ACTION brought against the decision of the First Board of Appeal of OHIM of 4 August 2011 (Case R 1825/2007‑1), relating to opposition proceedings between Rosenruist — Gestão e serviços, Lda and Gitana SA. |
Opeartive part
The Court:
2. | | Orders Gitana SA to pay the costs. |