Judgment of the General Court (Seventh Chamber) of 13 April 2011 – Tubesca v OHIM – Tubos del Mediterráneo (T TUMESA TUBOS DEL MEDITERRANEO S.A.)

(Case T-98/09)

Community trade mark – Opposition proceedings – Application for Community figurative mark T TUMESA TUBOS DEL MEDITERRANEO S.A. – Earlier national word mark and international figurative mark TUBESCA – Relative ground for refusal – No likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009)

1.                     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 – High distinctiveness of the earlier mark – Criteria for assessment (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 82-84)

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 (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 70, 85)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 17 December 2008 (Case R 518/2008-4) relating to opposition proceedings between Tubesca and Tubos del Mediterráneo, SA.

Information relating to the case

Applicant for the Community trade mark:	Tubos del Mediterráneo, SA
Community trade mark sought:	Figurative mark T TUMESA TUBOS DEL MEDITERRANEO S.A. for goods and services in Classes 6, 35 and 42 – Application No 4085098
Proprietor of the mark or sign cited in the opposition proceedings:	Tubesca
Mark or sign cited in opposition:	National and international word and figurative marks TUBESCA for goods in Classes 6, 19 and 20
Decision of the Opposition Division:	Opposition partially upheld; partial refusal to register the mark applied for
Decision of the Board of Appeal:	Decision of the Opposition Division annulled; opposition dismissed

Operative part

The Court:

1. 1. Dismisses the action;

2. 2. Orders Tubesca to pay the costs.