Action brought on 27 November 2006 - Moreira da Fonseca v OHIM - General Óptica (GENERAL OPTICA)

(Case T-321/06)

Language in which the application was lodged: English

Parties

Applicant: Alberto Jorge Moreira da Fonseca Lda (Santo Tirso, Portugal) (represented by: M. Oehen Mendes, lawyer)

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

Other party to the proceedings before the Board of Appeal: General Óptica SA (Barcelona, Spain)

Form of order sought

Annul the decision of the First Board of Appeal of OHIM of 8 August 2006 notified to the applicant 27 September 2006, in cancellation proceedings No 830C (Case No R 945/2005-1) and consequently declare Community trade mark No 573 774 'GENERAL OPTICA' filed on 10 July 1997 and registered on 10 September 1999, as invalid, or in the alternative, revoked;

order the defendant to pay the costs.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The figurative mark 'GENERAL OPTICA' for services in class 42 (Opticians' services) - Community trade mark No 573 774

Proprietor of the Community trade mark: General Óptica SA

Party requesting the declaration of invalidity of the Community trade mark: The applicant

Trade mark right of the party requesting the declaration of invalidity: The earlier national trade name 'Generalóptica' for import and retail sale of optical, precision and photographic apparatus

Decision of the Cancellation Division: Rejection of the request for a declaration of invalidity

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of among others Article 8(1) and (4) of Council Regulation No 40/94 as there is a likelihood of confusion between the two signs and the applicant's sign is granted national protection.

Infringement of Rule 22 of Commission Regulation No 2868/95 as OHIM omitted its duty to ask the applicant to present evidence of the earlier use invoked.

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