# C_2005155EN.01002203.xml

| 25.6.2005 | EN | Official Journal of the European Union | C 155/22 |
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25.6.2005

EN

Official Journal of the European Union

C 155/22

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Action brought on 22 February 2005 by K & L Ruppert Stiftung & Co. Handels-KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-86/05)

(2005/C 155/45)

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 22 February 2005 by K & L Ruppert Stiftung & Co. Handels-KG, established in Weilheim (Germany), represented by D. Spohn, lawyer.

Natália Cristina Lopes de Almeida Cunha, Cláudia Couto Simões and Marly Lima Jatobá, residing at Vila Nova de Gaia (Portugal), were also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

| — | annul the decision of the First Board of Appeal of 7 December 2004 in Case R 328/2004-1; |
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annul the decision of the First Board of Appeal of 7 December 2004 in Case R 328/2004-1;

| — | order the defendant to pay the costs. |
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order the defendant to pay the costs.

Pleas in law and main arguments

| Applicants for Community trade mark: | Natália Cristina Lopes de Almeida Cunha, Cláudia Couto Simões and Marly Lima Jatobá |
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| Community trade mark concerned: | Figurative mark ‘CORPO livre’ for goods in Classes 18 and 25 (Bags, clothing ...) — Application No 1811470 |
| Proprietor of mark or sign cited in the opposition proceedings: | The applicant |
| Mark or sign cited in opposition: | National and international word mark ‘LIVRE’ for goods in Class 25 (Clothing and shoes) |
| Decision of the Opposition Division: | The opposition was rejected as the evidence of use submitted was regarded as having been submitted out of time, and use of the earlier mark was therefore deemed not to have been established. |
| Decision of the Board of Appeal: | Dismissal of the applicant's appeal. |
| Pleas in law: | Incorrect application of Rule 71, in conjunction with Rule 22, of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (1) and Article 74(2) of Regulation (EC) No 40/94.
  Those provisions afford a margin of discretion in relation to consideration of evidence in inter partes proceedings too. However, the defendant did not exercise that discretion. |

Applicants for Community trade mark:

Natália Cristina Lopes de Almeida Cunha, Cláudia Couto Simões and Marly Lima Jatobá

Community trade mark concerned:

Figurative mark ‘CORPO livre’ for goods in Classes 18 and 25 (Bags, clothing ...) — Application No 1811470

Proprietor of mark or sign cited in the opposition proceedings:

The applicant

Mark or sign cited in opposition:

National and international word mark ‘LIVRE’ for goods in Class 25 (Clothing and shoes)

Decision of the Opposition Division:

The opposition was rejected as the evidence of use submitted was regarded as having been submitted out of time, and use of the earlier mark was therefore deemed not to have been established.

Decision of the Board of Appeal:

Dismissal of the applicant's appeal.

Pleas in law:

Incorrect application of Rule 71, in conjunction with Rule 22, of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (1) and Article 74(2) of Regulation (EC) No 40/94.

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Those provisions afford a margin of discretion in relation to consideration of evidence in inter partes proceedings too. However, the defendant did not exercise that discretion.

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(1)  OJ 1995 L 303, p. 1.

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