Case T-109/07: Action brought on 11 April 2007 — L'Oréal v OHIM — Spa Monopole (SPA THERAPY)
Date: 2007-06-23
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), aromatic plant, cosmetic product, health care, trade-mark law

23.6.2007

EN

Official Journal of the European Union

C 140/25

Action brought on 2 April 2007 — Fratex Indústria e
Comércio v OHIM — USA Track & Field (TRACK & FIELD
USA)

Action brought on 11 April 2007 — L'Oréal v OHIM —
Spa Monopole (SPA THERAPY)

(Case T-103/07)

(2007/C 140/44)

(Case T-109/07)

(2007/C 140/45)

Language in which the application was lodged: Portuguese

Language in which the application was lodged: French

Parties

Applicant: Fratex Indústria e Comércio (São Paulo, Brazil) (repre-
sented by: B. Braga da Cruz, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM:
USA Track & Field, Inc.

Form of order sought

— Annulment of

the decision of 18 January 2007 of

the
Fourth Board of Appeal of OHIM (Case No R. 1061/2005-
4);

— an order

that OHIM should,

in consequence, refuse to
register Community trade mark No 168088 in respect of
goods in Class 25;

Parties

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

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

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

Form of order sought

— Annulment of the decision of the Fourth Board of Appeal of
OHIM given on 24 January 2007 (Case R 468/2005-4);

— an order that OHIM should pay the costs.

— The defendant and, where appropriate the intervener, to pay

the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: USA Track & Field, Inc.

Pleas in law and main arguments

Community trade mark concerned: Mixed mark USA TRACK &
FIELD

Applicant for a Community trade mark: The applicant

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

Community trade mark concerned: The word mark ‘SPA THERAPY’
for goods in Class 3 — application No 1 975 283

Mark or sign cited in opposition: TRACK & FIELD

Decision of the Opposition Division: Upheld the opposition.

Proprietor of the mark or sign cited in the opposition proceedings: SA
Spa Monopole, Compagnie fermière de Spa, en abrégé SA Spa
Monopole NV

Decision of the Board of Appeal: Allowed the appeal brought by
USA Track & Field, Inc.

Pleas in law: The applicant takes the view that the contested deci-
sion is contrary to Article 8(1)(b) of Regulation No 40/94 (1),
since there exists the likelihood of confusion on the part of
consumers faced with the possible coexistence on the market of
the two signs at issue, on account of the coincidence of the
term TRACK & FIELD. As a matter of fact, the goods covered by
the marks at issue are identical and, even if there is no likeli-
hood of confusion in the strict sense, there is still the likelihood
of risk of confusion in the form of association with the earlier
trade mark, which is included in the former [likelihood of
in fine of that
confusion] in accordance with Article 8(1)(b)
regulation.

Mark or sign cited in opposition: The Benelux word mark ‘SPA’ for
goods in Class 3

Decision of the Opposition Division: Opposition upheld in respect
of all the disputed goods

Decision of
appeal

the Board of Appeal: Dismissal of

the applicant's

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC)
No 40/94 (1) in so far as the Board of Appeal erred in finding
that the signs at issue are similar and in that, according to the
applicant, there is no likelihood of confusion in the present case

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1)

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1)