14.4.2012

Official Journal of the European Union

C 109/18

(Case T-41/12)

2012/C 109/41

Language in which the application was lodged: English

Parties

Applicant: LS Fashion, LLC (Wilmington, United States) (represented by: R. Black and S. Davies, Solicitors)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal: Sucesores de Miguel Herreros, SA (La Orotava, Spain)

Form of order sought

—Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 24 November 2011 in case R 1584/2009-4;

—Annul the decision of the Opposition Division in so far as it upheld the opposition;

—Allow CTM application No 5190368 to proceed for registration in its full extent; and

—Order the Office and the other party to the proceedings to bear their own costs of the proceedings before the Office and the General Court and pay those of the applicant.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘L’Wren Scott’, for goods in classes 3, 9, 14 and 25 — Community trade mark application No 5190368

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

Mark or sign cited in opposition: Spanish trade mark application No 1164120 of the word mark ‘LOREN SCOTT’, for goods in class 25

Decision of the Opposition Division: Upheld the opposition for all the contested goods and allowed the CTM application to proceed for the remaining non-contested goods of the application

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 42(2) and (3) of Council Regulation No 207/2009, and Rules 22(2) and (3) of Commission Regulation No 2868/95, as the Board of Appeal failed to properly assess the evidence submitted by the opponent as to its genuine use of the earlier mark in light of the requirements imposed by the relevant provisions and by case-law, including the requirements to consider the place, time, extent and nature of use of a mark. Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal failed: (i) to properly assess the visual, aural and conceptual similarity of the respective marks; and (ii) to properly take into account the appropriate degree of similarity of the respective marks, and properly assess the degree of distinctiveness of the marks, including the likelihood of confusion.