CELEX: C2004/106/140
Language: en
Date: 2004-04-30 00:00:00
Title: Case T-39/04: Actionbrought on 5 February 2004 by Orsay GmbH againstthe Office for Harmonisation in the Internal Market (Trade Marks and Designs)

30.4.2004   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 106/69
            
         Action brought on 5 February 2004 by Orsay GmbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case T-39/04)
   (2004/C 106/140)
   Language of the case to be determined pursuant to Article 131(2) of the Rules of Procedure language in which the application was submitted: German
   An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 5 February 2004 by Orsay GmbH, Willstätt (Germany), represented by D. von Schultz, lawyer.
   José Jiménez Arellano S.A., Madrid, was also a party to the proceedings before the Board of Appeal.
   The applicant claims that the Court should:
   
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               annul Decision R 394/2002-4 of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 3 November 2003 and Decision 405/2002 of the Opposition Division of the Office for Harmonisation in the Internal Market of 25 February 2002 insofar as registration of the Community trade mark sought in Application No 1 042 613 in respect of articles of clothing; boots, shoes and slippers; headgear was refused on the basis of Opposition No B 242 059;
            
         
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               declare that the Office for Harmonisation in the Internal Market is to register the mark ‘O orsay’, sought in Application No 1 042 613 as a Community trade mark in respect of articles of clothing; boots, shoes and slippers; headgear in Class 25;
            
         
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               order the office for Harmonisation in the Internal Market to pay the costs of the opposition and appeal proceedings and of the present action.
            
         Pleas in law and main arguments:
   
               Applicant for Community trade mark:
            
            
               The applicant
            
         
               Community trade mark sought:
            
            
               The figurative mark ‘O orsay’ for goods in Classes 23, 24 and 25 (yarn, woven and knitted fabric; bed and table covers; articles of clothing; boots, shoes and slippers; headgear) – Application No 1 042 613
            
         
               Proprietor of mark or sign cited in the opposition proceedings:
            
            
               José Jiménez Arellano S.A.
            
         
               Mark or sign cited in opposition.
            
            
               The Spanish and Portuguese figurative mark ‘D'ORSAY’ for, inter alia, goods in Class 25
            
         
               Decision of the Opposition Division:
            
            
               Refusal of the application for registration in respect of the goods ‘articles of clothing; boots, shoes and slippers; headgear’. Rejection of the remainder of the opposition.
            
         
               Decision of the Board of Appeal:
            
            
               Dismissal of the applicant's appeal
            
         
               Pleas in law:
            
            
               
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                           The Office's decision was adopted in breach of Article 8(1) of Regulation (EC) No 40/94.
                        
                     
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                           There can be no likelihood of confusion in aural terms where the opposed marks ‘O orsay’ and ‘D'ORSAY’ are compared.
                        
                     
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                           Both a likelihood of confusion as a result of the typography and a likelihood of association can be ruled out.