9.2.2008

EN

Official Journal of the European Union

C 37/26

(Case T-438/07)

(2008/C 37/41)

Language in which the application was lodged: English

Parties

Applicant: Spa Monopole, compagnie fermière de Spa SA/NV (Spa, Belgium) (represented by: L. de Brouwer, E. Cornu, E. De Gryse and D. Moreau, lawyers)

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

Other party to the proceedings before the Board of Appeal: De Francesco Import GmbH (Nürnberg, Germany)

Form of order sought

—Annul the decision of the Second Board of Appeal of the Office of 13 September 2007 in Case R 1285/2006-2 and

—order the Office to bear the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: De Francesco Import GmbH

Community trade mark concerned: The word mark ‘SpagO’ for goods in class 33 — application No 2 320 844

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited: The Community, national and international word and figurative marks ‘SPA’, ‘SPA Citron’ and ‘SPA Orange’ for goods in class 32

Decision of the Opposition Division: Opposition upheld in its entirety

Decision of the Board of Appeal: Annulment of the Opposition Division's decision and rejection of the opposition

Pleas in law: Infringement of Article 8(5) of Council Regulation No 40/94, as the Board of Appeal underestimated the reputation of SPA in the Benelux and did not take the following factors sufficiently into account:

—the oral and visual similarities of the trade marks in question;

—the fact that the use of the trade mark ‘SpagO’ for alcoholic beverages would be detrimental to the reputation of the mineral water ‘SPA’, which built its reputation on its high quality, purity and beneficial effects upon health;

—the fact that the use of ‘SpagO’ for beverages would take unfair advantage of the reputation of the trade mark ‘SPA’ and its image of quality and purity.