Source: EURLEX
Language: en
Format: md

**Judgment of the General Court (Sixth Chamber) of 29 September 2011 – New Yorker SHK Jeans v OHIM – Vallis K. – Vallis A. (FISHBONE)**

**(Case T-415/09)**

Community trade mark – Opposition proceedings – Application for registration of the Community word mark FISHBONE – Earlier national figurative mark FISHBONE BEACHWEAR – Relative ground for refusal – Partial refusal of registration – Genuine use of the earlier mark – Consideration of additional evidence – Statement of reasons – Proof of genuine use – Likelihood of confusion – Article 42(2) and (3) and Article 76(2) of Regulation (EC) No 207/2009 – Second sentence of Rule 22(2) of Regulation (EC) No 2868/95 – Article 75 of Regulation No 207/2009 – First subparagraph and second subparagraph, heading (a), of Article 15(1) and Article 42(2), (3) and (5) of Regulation No
207/2009 – Article 8(1)(b) of Regulation No 207/2009

1.                     *Community trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the
earlier mark – Time-limit set by the Office – Submission of additional evidence after expiry of the time-limit where there
are new factors – Lawfulness (Commission Regulation No 2868/95, Art. 1, Rule 22(1)) (see paras 27, 31)*

2.                     *Community trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the
earlier mark – Genuine use – Concept – Criteria for assessment (Council Regulation No 207/09, Art. 42(2) and (3)) (see paras
51-53)*

3.                     *Community trade mark – Definition and acquisition of the Community trade mark – Relative grounds for refusal – Opposition
by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Likelihood
of confusion with the earlier mark (Council Regulation No 207/09, Art. 8(1)(b)) (see paras 87, 94, 97)*

**Re:**

|  |  |
| --- | --- |
|  | ACTION brought against the decision of the First Board of Appeal of OHIM of 30 July 2009 (Case R 1051/2008-1), concerning opposition proceedings between Vallis K. – Vallis A. & Co. OE and New Yorker SHK Jeans GmbH & Co. KG. |

**Operative part**

The Court:

|  |  |  |
| --- | --- | --- |
| 1. |  | Dismisses the action; |

|  |  |  |
| --- | --- | --- |
| 2. |  | Orders New Yorker SHK Jeans GmbH & Co. KG to pay the costs. |

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