Case T-321/06: Action brought on 27 November 2006 — Moreira da Fonseca v OHIM — General Óptica (GENERAL OPTICA)
Date: 2006-12-30
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), optical industry, service, trade-mark law

30.12.2006

EN

Official Journal of the European Union

C 326/71

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 2 436 798

filed on 5
mark No 2 436 723 ‘GENERAL OPTICA’
November 2001 and registered on 31 January 2003, as
invalid, or in the alternative, revoked;

— order the defendant to pay the costs.

Proprietor of the Community trade mark: General Óptica SA

Pleas in law and main arguments

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

the application for a
Registered Community trade mark subject of
declaration of invalidity: The figurative mark ‘GENERAL OPTICA’
for services in class 42 (Opticians' services) — Community trade
mark No 2 436 723

Proprietor of the Community trade mark: General Óptica SA

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

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

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.

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

(Case T-320/06)

(2006/C 326/147)

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.

Language in which the application was lodged: English

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

Parties

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

(Santo Tirso,

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)

Parties

(Case T-321/06)

(2006/C 326/148)

Language in which the application was lodged: English

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
in cancellation proceedings No 829C (Case No R
2006,
946/2005-1) and consequently declare Community trade

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

(Santo Tirso,

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)

C 326/72

EN

Official Journal of the European Union

30.12.2006

Form of order sought

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

— declaration that the inclusion of SIC ES 166 0014 ‘Artos de
El Ejido’
in the decision adopted by the Commission
concerning the Mediterranean region is null and void, and
an order ‘Artos de El Ejido’ to be removed from the list of
‘sites of Community importance’ contained in that decision;

— alternatively, a declaration that the inclusion of the farms
situated in the municipality of El Ejido north of Santa María
del Águila in the SIC is null and void or, to the same effect,
a declaration that
situated
the inclusion of
between the greenhouses to the north of Santa María del
Águila in the SIC ‘Artos de El Ejido’ is null and void;

the farms

— order the Commission to pay the costs.

Pleas in law and main arguments

is

action

brought

against Commission Decision
This
2006/613/EC of 19 July 2006 adopting, pursuant to Council
Directive 92/43/EEC, the list of sites of Community importance
for the Mediterranean biogeographical region (1), in so far as it
declares ES61 0014 ‘Artos de El Ejido’ a site of Community
importance, either in its entirety or, alternatively, in so far as it
includes in that list specific farms belonging to the applicants.

Decision of the Board of Appeal: Dismissal of the appeal

In support of their claims the applicants submit:

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.

Action brought on 21 November 2006 — Espinosa Labella
and Others v Commission

(Case T-322/06)

(2006/C 326/149)

Language of the case: Spanish

Parties

Applicants: Manuel Espinosa Labella and Others (Almería, Spain)
(represented by: J. Rovira, lawyer)

Defendant: Commission of the European Communities

— that the defendant has not carried out a proper assessment
of the Kingdom of Spain's proposal to include ‘Artos de El
Ejido’ in the list of sites of Community importance in the
Mediterranean biogeographical area, contrary to the provi-
sions of Article 4 of Directive 92/43/EC. The applicants
state, in that respect, that as soon as they became aware of
that proposal, they complained on a number of occasions to
the staff at the Commission Directorate General
for the
Environment, claiming:

— extensive anthropisation of the land concerned making it
for wild flora and

unsuitable as an appropriate habitat
fauna;

— failure to define the SIC which it purports to designate or, in
the alternative, failure to define the SIC appropriately by
means of the boundaries of private properties and not the
natural characteristics of the land;

— lack of any scientific basis for the protection of designated
species on farms situated in areas of industrial agriculture or
intensive agriculture in greenhouses.

As regards the SIC at issue, the affected area was not correctly
selected as the national authorities have not provided the full
scientific data required. However, although the Spanish authori-
ties have failed to provide such data,
the Commission was
obliged to do so. In that regard, the applicants submit that the
reasoning on which a decision is based, which designates an
area as deserving protection, must be accompanied by a
substantial amount of scientific evidence which must satisfy the
criteria laid down in Annex III of the directive.