(Case T-382/08

Judgment of the General Court (First Chamber) of 18 January 2011 – Advance Magazine Publishers v OHIM – Capela & Irmãos (VOGUE)

(Case T-382/08)

Community trade mark – Opposition proceedings – Application for Community word mark VOGUE – Earlier national word mark VOGUE Portugal – No genuine use of the earlier mark – Article 43(2) and (3) of Regulation (EC) No 40/94 (now Article 42(2) and (3) of Regulation (EC) No207/2009)

1.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 40/94, Art. 43(2) and (3)) (see paras 27-29)

2.Community trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the earlier mark – Genuine use – Application of the criteria to the case in question (Council Regulation No 40/94, Art. 43(2) and (3)) (see paras 30-32)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 30 June 2008 (Case R328/2003-2) relating to opposition proceedings between J.Capela & Irmãos, L

da

and Advance Magazine Publishers, Inc.

Information relating to the case

Applicant for the Community trade mark:	Advance Magazine Publishers, Inc.
Community trade mark sought:	Word mark VOGUE for goods and services in Classes 9, 14, 16, 25 and 41 – Application No 183756
Proprietor of the mark or sign cited in the opposition proceedings:	J.Capela & Irmãos, Lda
Mark or sign cited in opposition:	Portuguese trade mark registration No 143183 of the word mark VOGUE Portugal for goods in Class 25; Portuguese business name No 32046 VOGUE – SAPATARIA
Decision of the Opposition Division:	Opposition upheld in its entirety
Decision of the Board of Appeal:	Appeal dismissed

Operative part

The Court:

1.

Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 30 June 2008 (Case R328/2003-2);

2.

Dismisses the action as to the remainder;

3.

Orders OHIM to bear its own costs and those incurred by Advance Magazine Publishers, Inc.