Judgment of the General Court (Second Chamber) of 8 December 2015 —
Giand v OHIM — Flamagas (FLAMINAIRE)
(Case T‑583/14)
Community mark — Opposition proceedings — Application for Community word mark FLAMINAIRE — Earlier national and international word marks FLAMINAIRE — Relative grounds for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Genuine use of the earlier mark — Article 42(2) and (3) of Regulation No 207/2009 — Ne bis in idem
1. Community trade mark — Proceedings before the OHIM authorities — Relation between a decision on an opposition and an opposition formed subsequently in a different procedure — Res judicata — Not applicable (Council Regulation No 207/2009) (see para. 21)
2. Community trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Genuine use — Concept — Interpretation having regard to the rationale of Article 42(2) and (3) of Regulation No 207/2009 (Council Regulation No 207/2009, Art. 42(2) and (3)) (see paras 23-28)
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 — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 42-45)
4. 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 (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 54, 56, 58)
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 — Likelihood of confusion with the earlier mark — Word mark FLAMINAIRE and word marks FLAMINAIRE (Council Regulation No 207/2009, Art. 8(1)(a) and (b)) (see paras 56, 58, 64, 68, 69)
6. Community trade mark — Appeals procedure — Action before the EU judicature — Jurisdiction of the General Court — Confirmatory judgments — Not included (Council Regulation No 207/2009, Art. 65(2) and (3)) (see para. 71)
Re:
| ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 11 June 2014 (Case R 2117/2011-4), relating to opposition proceedings between Flamagas, SA and Giand Srl. |
Operative part
The Court:
2. | | Orders Giand Srl to pay the costs, including those necessarily incurred by Flamagas, SA for the purposes of the proceedings before the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM). |