Case T-382/08: Action brought on 10 September 2008 — Advance Magazine Publishers v OHIM — Capela & Irmãos (VOGUE)
Date: 2008-09-10
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, Portugal, action for failure to fulfil an obligation, trade-mark law

22.11.2008

EN

Official Journal of the European Union

C 301/47

Action brought on 10 September 2008 — Advance
Magazine Publishers v OHIM — Capela & Irmãos (VOGUE)

(Case T-382/08)

(2008/C 301/80)

Language in which the application was lodged: English

Parties

Applicant: Advance Magazine Publishers, Inc. (New York, United
States) (represented by: M. Esteve Sanz, lawyer)

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

Other party to the proceedings before the Board of Appeal: J. Capela
& Irmãos, Lda. (Porto, Portugal)

Form of order sought

— Alter the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 30 June 2008 in case R 328/2003-2 so as
to hold that the appeal brought by the applicant before the
Board of Appeal is well founded and, consequently, that the
opposition is rejected and the Community trade mark
concerned is admitted;

— In the alternative, annul the decision of the Second Board of
Appeal of
the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) of 30 June 2008 in case
R 328/2003-2; and

Pleas in law: (i) Infringement of Article 43(2) and (3) of Council
Regulation No 40/94 and Rule 22 of Commission Regulation
No 2868/95 (1) as the Board of Appeal wrongly considered that
the evidence submitted by the other party to the proceedings
before the Board of Appeal did constitute proof of genuine use
of the earlier trade mark; (ii) Infringement of Article 8(1)(b) of
Council Regulation No 40/94 as the Board of Appeal wrongly
found that the goods in question are similar; (iii) Infringement
of Articles 61(1) and 62(2) of Council Regulation No 40/94
insofar as the Board of Appeal wrongly based its ruling on the
fact that the applicant failed to challenge the findings of the
Opposition Division as to the proof of use or as to the similarity
of the goods and services in question, as well as on the fact that
before the Opposition Division the applicant implicitly consid-
ered that the proof of use was sufficient.

(1) Commission Regulation (EC) No 2868/95 of 13 December 1995
implementing Council Regulation (EC) No 40/94 on the Community
trade mark (OJ 1995 L 303, p. 1).

Action brought on 11 September 2008 — New Europe v
Commission

(Case T-383/08)

(2008/C 301/81)

Language of the case: English

— Order the defendant and, as the case may be, the other
party to the proceedings before the Board of Appeal, to pay
the costs,
incurred before
OHIM.

including the costs of appeal

Parties

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘VOGUE’ for
goods and services in classes 9, 14, 16, 25 and 41

Applicant: New Europe (Brussels, Belgium) (represented by: A.-M.
Alamanou, lawyer)

Defendant: Commission of the European Communities

Proprietor of the mark or sign cited in the opposition proceedings: The
other party to the proceedings before the Board of Appeal

Form of order sought

Mark or sign cited: Portuguese trade mark registration No 143 183
of the word mark ‘VOGUE Portugal’ for goods in class 25;
Portuguese business name No 32 046 ‘VOGUE-SAPATARIA’

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

— Annulment of the Commission decision in the form of a
letter dated 2 July 2008 and received by the applicant on
the same day, refusing to the latter access to the names of
the companies and the individuals cited in the documents
disclosed by the Commission; and

— Order that the costs of, and occasioned by these proceedings

Decision of the Board of Appeal: Dismissal of the appeal

be borne by the respondent.