Action brought on 29 December 2010 - Just Music Fernsehbetrieb v OHIM - France Télécom (Jukebox)

(Case T-589/10)

Language in which the application was lodged: English

Parties

Applicant: Just Music Fernsehbetrieb GmbH (Landshut, Germany) (represented by: T. Kaus, lawyer)

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

Other party to the proceedings before the Board of Appeal: France Télécom SA (Paris, France)

Form of order sought

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 October 2010 in case R 1408/2009-1

Order the defendant to reject the opposition decision of 30 September 2010 in case B 1304494 and to allow the application No 6163778 for registration in its entirety

Order the defendant to bear the costs of the proceedings

Order the other party to the proceedings before the Board of Appeal to bear the costs of the proceedings incurred by the applicant before the Board of Appeal and the Opposition Division and

In the alternative, stay the proceedings until a final decision is taken on the application for revocation lodged by the applicant on 21 December 2010 at OHIM against the earlier Community trade mark No 3693108.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark "Jukebox", for services in classes 38 and 41 - Community trade mark application No 6163778

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

Mark or sign cited in opposition: Community trade mark registration No 3693108 of the figurative mark "JUKE BOX", for goods and services in classes 9, 16, 35, 38, 41 and 42

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The applicant considers that the contested decision infringes: (i) Articles 15 and 42(2) of Council Regulation (EC) No 207/2009, as no proof of genuine use has been provided of the mark cited in the opposition proceedings - Community trade mark registration No 3693108 "JUKE BOX", (ii) Articles 8(1)(b), 9 and 65(2) of Council Regulation (EC) No 207/2009, as the Board of Appeal erred in its assessment of the similarity of the contested trade mark, and (iii) Article 78 of Council Regulation (EC) No 207/2009, as the Board of Appeal failed to exercise its powers of investigation and failed to exercise the full remit of its powers.

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