Notice for the OJ

 

Action brought on 5 February 2004 by Orsay GmbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-39/04)

Language of the case

to be determined pursuant to Article 131(2) of the Rules of Procedure

- language in which the application was submitted: German

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 5 February 2004 by Orsay GmbH, Willstätt (Germany), represented by D. von Schultz, lawyer.

José Jiménez Arellano S.A., Madrid, was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

-    annul Decision R 394/2002-4 of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 3 November 2003 and Decision 405/2002 of the Opposition Division of the Office for Harmonisation in the Internal Market of 25 February 2002 insofar as registration of the Community trade mark sought in Application No 1 042 613 in respect of articles of clothing; boots, shoes and slippers; headgear was refused on the basis of Opposition No B 242 059;

-    declare that the Office for Harmonisation in the Internal Market is to register the mark "O orsay", sought in Application No 1 042 613 as a Community trade mark in respect of articles of clothing; boots, shoes and slippers; headgear in Class 25;

-    order the office for Harmonisation in the Internal Market to pay the costs of the opposition and appeal proceedings and of the present action.

Pleas in law and main arguments:

Applicant for Community trade mark:The applicant

Community trade mark sought:The figurative mark "O orsay" for goods in Classes 23, 24 and 25 (yarn, woven and knitted fabric; bed and table covers; articles of clothing; boots, shoes and slippers; headgear) - Application No 1 042 613

Proprietor of mark or sign cited in the opposition proceedings:

José Jiménez Arellano S.A.

Mark or sign cited in opposition.The Spanish and Portuguese figurative mark "D'ORSAY" for, inter alia, goods in Class 25

Decision of the Opposition Division:Refusal of the application for registration in respect of the goods "articles of clothing; boots, shoes and slippers; headgear". Rejection of the remainder of the opposition.

Decision of the Board of Appeal:Dismissal of the applicant's appeal

Pleas in law:The Office's decision was adopted in breach of Article 8(1) of Regulation (EC) No 40/94.

There can be no likelihood of confusion in aural terms where the opposed marks "O orsay" and "D'ORSAY" are compared.

Both a likelihood of confusion as a result of the typography and a likelihood of association can be ruled out.

____________