(Case T-437/09)

Community trade mark – Opposition proceedings – Application for Community figurative mark Oyster cosmetics – Earlier Community figurative mark Kadus oystra AUTO STOP PROTECTION – Relative ground for refusal – Likelihood of confusion – Similarity of signs – Article 8(1)(b) of Regulation (EC) No 207/2009

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 (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 23, 51, 55)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 5 August 2009 (Case R 1367/2008-1) concerning opposition proceedings between Kadabell GmbH & Co. KG and Oyster Cosmetics SpA.

Information relating to the case

Applicant for the Community trade mark:

Community trade mark sought:

Figurative mark Oyster cosmetics for goods in Class 3 – Application No 3791555

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

Kadabell GmbH & Co. KG

Mark or sign cited in opposition:

Community trade mark registration of the figurative mark Kadus oystra AUTO STOP PROTECTION for goods in Class 3

Decision of the Opposition Division:

Opposition partially upheld

Decision of the Board of Appeal:

Appeal dismissed

Operative part

The Court:

1.Dismisses the action;

2.Orders Oyster Cosmetics SpA to pay the costs.