CELEX: C2006/326/147
Language: en
Date: 2006-12-30 00:00:00
Title: Case T-320/06: Action brought on 27 November 2006 — Moreira da Fonseca v OHIM — General Óptica (GENERAL OPTICA)

30.12.2006   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 326/71
            
         Action brought on 27 November 2006 — Moreira da Fonseca v OHIM — General Óptica (GENERAL OPTICA)
   (Case T-320/06)
   (2006/C 326/147)
   Language in which the application was lodged: English
   Parties
   
      Applicant: Alberto Jorge Moreira da Fonseca Lda (Santo Tirso, Portugal) (represented by: M. Oehen Mendes, lawyer)
   
      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   
      Other party to the proceedings before the Board of Appeal: General Óptica SA (Barcelona, Spain)
   Form of order sought
   
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               Annul the decision of the First Board of Appeal of OHIM of 8 August 2006 notified to the applicant 27 September 2006, in cancellation proceedings No 829C (Case No R 946/2005-1) and consequently declare Community trade mark No 2 436 723‘GENERAL OPTICA’ filed on 5 November 2001 and registered on 31 January 2003, as invalid, or in the alternative, revoked;
            
         
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               order the defendant to pay the costs.
            
         Pleas in law and main arguments
   
      Registered Community trade mark subject of the application for a declaration of invalidity: The figurative mark ‘GENERAL OPTICA’ for services in class 42 (Opticians' services) — Community trade mark No 2 436 723
   
      Proprietor of the Community trade mark: General Óptica SA
   
      Party requesting the declaration of invalidity of the Community trade mark: The applicant
   
      Trade mark right of the party requesting the declaration of invalidity: The earlier national trade name ‘Generalóptica’ for import and retail sale of optical, precision and photographic apparatus
   
      Decision of the Cancellation Division: Rejection of the request for a declaration of invalidity
   
      Decision of the Board of Appeal: Dismissal of the appeal
   
      Pleas in law: Infringement of among others Article 8(1) and (4) of Council Regulation No 40/94 as there is a likelihood of confusion between the two signs and the applicant's sign is granted national protection.
   Infringement of Rule 22 of Commission Regulation No 2868/95 as OHIM omitted its duty to ask the applicant to present evidence of the earlier use invoked.