Judgment of the Court of First Instance (Fifth Chamber) of 11 December 2007 – Portela & Companhia v OHMI – Torrens Cuadrado et Sanz (Bial)
(Case T-10/06)
Community trade mark – Opposition proceedings – Application for figurative Community trade mark Bial – Earlier national word mark BIAL – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No40/94 – Proof of existence of the earlier mark – Coexistence of earlier marks – Plea amending subject-matter of the proceedings – Evidence presented for the first time before the Court of First Instance – Costs incurred before the Opposition Division
1.Community trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of registration or filing of the earlier mark (Commission Regulation No 2868/95, Rule 16(2)) (see para. 34)
2.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 (see para. 76)
Re:
| ACTION brought against the decision of the First Board of Appeal of OHIM of 14 September 2005 (Case R 897/2004-1) concerning opposition proceedings between (a) Juan Torrens Cuadrado and Josep Gilbert Sanz and (b) Portela & Companhia, SA. |
Information relating to the case
Applicant for the Community trade mark: | Portela & Companhia, SA |
Community trade mark sought: | Figurative mark Bial – Application No1400183 |
Proprietor of the mark or sign cited in the opposition proceedings: | Juan Torrens Cuadrado and Josep Gilbert Sanz |
Mark or sign cited in opposition: | Spanish word mark BIAL |
Decision of the Opposition Division: | Opposition partially upheld |
Decision of the Board of Appeal: | Decision of the Opposition Division confirmed in its entirety |
Operative part
The Court:
1. |
| Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 14 September 2005 (Case R 897/2004-1) in so far as it orders the applicant to pay the sum of EUR600 towards the costs incurred by Mr Torrens Cuadrado and Mr Gilbert Sanz for the opposition proceedings; |
2. |
| Dismisses the remainder of the application; |
3. |
| Orders Portela & Companhia, SA to pay, in addition to its own costs, half the costs incurred by OHIM. |