CELEX: 62012TN0034
Language: en
Date: 2012-01-25 00:00:00
Title: Case T-34/12: Action brought on 25 January 2012 — Herbacin cosmetic v OHIM — Laboratoire Garnier (HERBA SHINE)

17.3.2012   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 80/24
            
         Action brought on 25 January 2012 — Herbacin cosmetic v OHIM — Laboratoire Garnier (HERBA SHINE)
   (Case T-34/12)
   2012/C 80/41
   Language in which the application was lodged: German
   
      Parties
   
   
      Applicant: Herbacin cosmetic GmbH (Wutha-Farnroda, Germany) (represented by: J. Eberhardt, lawyer)
   
      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   
      Other party to the proceedings before the Board of Appeal: Laboratoire Garnier et Cie (Paris, France)
   
      Form of order sought
   
   The applicant claims that the Court should:
   
               —
            
            
               annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 November 2011 in Case R 2255/2010-1;
            
         
               —
            
            
               order the defendant to pay the costs.
            
         
      Pleas in law and main arguments
   
   
      Applicant for a Community trade mark: Laboratoire Garnier et Cie
   
      Community trade mark concerned: the word mark ‘HERBA SHINE’ for goods in Class 3
   
      Proprietor of the mark or sign cited in the opposition proceedings: the applicant
   
      Mark or sign cited in opposition: the national and Community word mark and international registration ‘HERBACIN’ for goods in Class 3
   
      Decision of the Opposition Division: the opposition was upheld
   
      Decision of the Board of Appeal: the appeal was upheld
   
      Pleas in law: Infringement of the first sentence of Article 42(2) of Regulation No 207/2009 in that, at the time of the first-instance opposition decision, an effective request for proof of use on the part of the applicant no longer existed; infringement of point (b) of the second sentence of Article 15(1) of Regulation No 207/2009 in that the Board of Appeal of OHIM erred in law in disregarding considerable export turnover under the opposing mark ‘HERBACIN’; and infringement of the first sentence of Article 15(1) of Regulation No 207/2009 in that the proof of use submitted as regards customers within the Community was incorrectly assessed.