Judgment of the Court of First Instance (Third Chamber) of 30 November 2009 – Esber v OHIM– Coloris Global Coloring Concept (COLORIS)
(Case T-353/07)
Community trade mark – Opposition proceedings – Application for Community figurative mark COLORIS – Earlier national word mark COLORIS – Relative ground for refusal – Genuine use of the earlier trade mark – Article 15(2)(a) and Article 43(2) and (3) of Regulation (EC) No40/94 (now Article 15(1)(a) and Article 42(2) and (3) of Regulation (EC) No207/2009)
Community trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the earlier mark – Use in a form without differences capable of affecting the distinctive character of the trade mark (Council Regulation No 40/94, Arts 15(2)(a) and 43(2) and (3)) (see paras 36, 50)
Re:
| ACTION brought against the decision of the First Board of Appeal of OHIM of 28 June 2007 (Case R1060/2006‑1), concerning opposition proceedings between Coloris Global Coloring Concept and Esber, SA. |
Information relating to the case
Applicant for the Community trade mark: | Esber, SA |
Community trade mark sought: | Figurative mark containing the word COLORIS for goods in Class 2 – Application No 2817732 |
Proprietor of the mark or sign cited in the opposition proceedings: | Coloris Global Coloring Concept |
Mark or sign cited in opposition: | French national word mark COLORIS for goods in Class 2 (No 98/717642) |
Decision of the Opposition Division: | Opposition upheld |
Decision of the Board of Appeal: | Appeal dismissed |
Operative part
The Court:
1. |
| Dismisses the action; |
2. |
| Orders Esber, SA to pay the costs. |