Case T-170/07: Action brought on 8 May 2007 — Opus Arte UK v OHMI — Arte (OPUS ARTE)
Date: 2007-07-21
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), audiovisual equipment, book trade, clothing industry, film industry, trade-mark law

C 170/28

EN

Official Journal of the European Union

21.7.2007

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

— annul the decision of the First Board of Appeal of the Office
for Harmonisation in the Internal Market (Trade marks and
Designs) of 8 March 2007 in Case R 733/2005-1; and

Community
trade mark concerned: The figurative mark ‘PTR
PROFESSIONAL TENNIS REGISTRY’ for goods and services in
classes 16, 25 and 41 — application No 2 826 709

— order that the costs of the proceedings be borne by the

defendant.

Proprietor of the mark or sign cited in the opposition proceedings:
Registro Profesional de Tenis, SL

Pleas in law and main arguments

Mark or sign cited: The national figurative marks ‘RPT Registro
Profesional de Tenis, S.L’ and ‘RPT European Registry of Profes-
sional Tennis’ for services in class 41

Decision of the Opposition Division: Rejection of the opposition in
its entirety

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The Community figurative mark
‘Opus Arte’ for goods and services in Class 9, 16, 25 and 41 —
Application No 2 551 778

Decision of the Board of Appeal: Partial annulment of the Opposi-
tion Division's decision and rejection of the trade mark applica-
tion for the products and services in classes 16 and 41

Proprietor of the mark or sign cited in the opposition proceedings:
ARTE G.E.I.E.

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94 as the Board of Appeal concluded that there
was confusing similarity between the applicant's Community
trade mark application and Registro Profesional de Tenis' earlier
trade marks. The Board of Appeal failed to give proper consid-
eration to the principles to be applied where the trade marks in
issue are complex marks.

Mark or sign cited: The Community and national figurative and
word marks containing the word ‘ARTE’ for goods and services
in Classes 9, 16, 25 and 41 among other Classes not concerned
by the proceedings

Decision of the Opposition Division: Rejected the opposition in its
entirety

Decision of the Board of Appeal: Upheld the appeal
limited to
Class 41 for ‘film and television production and distribution’
services and allowed registration to proceed for the remaining
goods and services applied for.

Action brought on 8 May 2007 — Opus Arte UK v OHMI
— Arte (OPUS ARTE)

Pleas in law:

(Case T-170/07)

(2007/C 170/56)

Language in which the application was lodged: English

Parties

Applicant: Opus Arte UK Ltd (Waldron, England) (represented
by: D. McFarland, Barrister, and J.A. Alchin, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Arte
G.E.I.E. (Strasbourg, France)

Form of order sought

The applicant requests the Court to:

The applicant advances two pleas in law in support of its appli-
cation.

On the basis of its first plea, the applicant submits that the
contested decision violates Articles 73 and 74 of Council Regu-
lation (EC) No 40/94 (hereinafter ‘the CTMR’). According to the
applicant, the Board should have neither refused to take into
account relevant facts, evidence and arguments submitted by the
applicant, nor based its decision on assumptions of facts not
previously raised by either party or on vague and unsubstan-
tiated allegations made by the opponent.

By its second plea, the applicant contends that the contested
decision infringes Article 8(1)(b) CTMR in finding a likelihood
of confusion between ‘ARTE’ and ‘OPUS ARTE’. According to
the applicant, such a finding could not be based on the arguable
similarity of
the
presumptions by the positive evidence of lack of confusion and
the actual lack of any evidence of confusion and the peaceful
co-existence of the marks in the market place in Europe.

the marks, nor could it properly rebut