# C_2007069EN.01002301.xml

| 24.3.2007 | EN | Official Journal of the European Union | C 69/23 |
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24.3.2007

EN

Official Journal of the European Union

C 69/23

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Action brought on 29 January 2007 — L'Oréal v OHIM — Spa Monopole (SPALINE)

(Case T-21/07)

(2007/C 69/51)

Language in which the application was lodged: English

Parties

Applicant: L'Oréal SA (Paris, France) (represented by: E. Baud, lawyer)

Applicant:

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

Defendant

Other party to the proceedings before the Board of Appeal: SA Spa Monopole, Compagnie fermière de Spa, en abrégé SA Spa Monopole NV (Spa, Belgium)

Other party to the proceedings before the Board of Appeal:

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 18 October 2006 in Case R 415/2005-1; |
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Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 October 2006 in Case R 415/2005-1;

| — | order that the costs of the proceedings be borne by the defendant and, if appropriate, the intervener. |
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order that the costs of the proceedings be borne by the defendant and, if appropriate, the intervener.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Applicant for the Community trade mark:

Community trade mark concerned: The community word mark ‘SPALINE ’for the goods in class 3 (bath and shower soaps, skin moisturizers, body lotions, skin toners, astringents, skin and body cleansers, facial masks, scrubs and fragrance products) — application No 989 236

Community trade mark concerned:

Proprietor of the mark or sign cited in the opposition proceedings: SA Spa Monopole NV

Proprietor of the mark or sign cited in the opposition proceedings:

Mark or sign cited: The national and international word and figurative marks ‘SPA’, ‘LIP SPA’, ‘SPA SKIN CARE ’and ‘Les Thermes de Spa ’for goods in classes 3, 32, 42

Mark or sign cited:

Decision of the Opposition Division: Opposition upheld

Decision of the Opposition Division:

Decision of the Board of Appeal: Appeal dismissed

Decision of the Board of Appeal:

Pleas in law: The applicant develops one single plea in law in support of its application, on the basis of which it claims that the contested decision infringes Article 8(5) of Council Regulation (EC) No 40/94.

Pleas in law:

The applicant first argues that the contested decision failed to properly assess the requirements for the application of Article 8(5) of the CTMR, insofar as it did not take into consideration and therefore totally disregarded the descriptive and generic character of the word ‘spa ’in relation to cosmetics in the Benelux territory.

In particular, the applicant submits that the contested decision did not correctly assess several requirements provided for under Article 8(5) of the CTMR since, contrary to the findings of the First Board of Appeal, the signs at stake are not similar visually, phonetically or conceptually for the relevant consumer to establish a link between them. Moreover, the applicant suggests that the use of the ‘SPALINE ’Community trade mark is not capable of taking unfair advantage of the reputation of the earlier Benelux trade mark ‘SPA ’and, finally, that it is not used without due cause.

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