Case T-320/06: 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)