4.7.2009

EN

Official Journal of the European Union

C 153/49

(Case T-183/09)

2009/C 153/93

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 and O. Klimis, lawyers)

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

Other party to the proceedings before the Board of Appeal: Club de Golf Peralada, SA (Barcelona, 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 2 March 2009 in joined cases R 1231/2005-4 and R 1250/2005-4; and

—Order OHIM to pay the costs

Pleas in law and main arguments

Applicant for the Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The word mark “WINE SPA”, for goods and services in classes 3, 5, 16, 24, 25 and 42

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

Mark or sign cited: Various national, international and Community trade mark registrations of the mark “SPA” for goods and services in classes 3, 32 and 42, respectively; Benelux and international trade mark registration of the mark “LES THERMES DE SPA” for goods and services in classes 3 and 42; German trade mark registration of the mark “SPA MONOPOLE S.A. SPA” for goods in class 3; S.A. SPA Monopole, Compagnie fermière de Spa, en abrégé S.A. Spa Monopole N.V., société anonyme, company name protected in Belgium; Les Thermes de Spa, Place Royale 2, 4900 Spa, Belgium, trade name protected in Belgium

Decision of the Opposition Division: Upheld the opposition partially

Decision of the Board of Appeal: Partially annulled the decision of the Opposition Division and rejected the opposition in its entirety

Pleas in law: Infringement of Articles 75, second sentence and 76(1), second sentence of Council Regulation 207/2009 (1) as the decision of the Board of Appeal was taken in breach of the principle of the right to a fair hearing, as well as in breach of the adversarial principle; Infringement of Article 8(5) of Council Regulation 207/2009 as the Board of Appeal based its assessment of the distinctive character of the earlier trade mark “SPA” on erroneous and non-established elements and failed to assess the similarity between the trade marks concerned in relation to the goods for which they are registered or applied for. Finally, the Board of Appeal failed to examine whether the use of the Community trade mark concerned was likely to take unfair advantage of, or to be detrimental to the distinctive character and the reputation of the earlier mark “SPA”, thereby infringing Article 8(5) of Council Regulation 207/2009.

Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark, JO L 78, p. 1