CELEX: 62009TJ0415
Language: en
Date: 2011-09-29 00:00:00
Title: Judgment of the General Court (Sixth Chamber) of 29 September 2011. # New Yorker SHK Jeans GmbH & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM). # 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. # Case T-415/09.

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.