Judgment of the Court of First Instance (Fifth Chamber) of 14 February 2008 – Orsay v OHIM – Jiménez Arellano (O orsay)

(Case T-39/04)

Community trade mark – Opposition procedure – Application for the word and figurative trade mark O orsay – Earlier national word and figurative trade mark D’ORSAY – Ground for refusal – Risk of confusion – Article 8(1)(b) of Regulation (EC) No 40/94

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 40/94, Art. 8(1)(b)) (see paras 49, 52-55)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 3 November 2003 (Case R 394/2002-4) concerning an opposition procedure between José Jiménez Arellano S.A. and Orsay GmbH.

Information relating to the case

Applicant for the Community trade mark:

Community trade mark sought:

Word and figurative mark O orsay for goods in Classes 23, 24 and 25 – Application No 1042613

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

José Jiménez Arellano SA

Mark or sign cited in opposition:

Spanish and Portuguese figurative mark D’ORSAY, for goods primarily in Class 25

Decision of the Opposition Division:

Application for trade mark dismissed for goods (clothing; boots, shoes and slippers; headgear). Opposition dismissed as to the remainder.

Decision of the Board of Appeal:

Appeal dismissed

Operative part

The Court:

1.Dismisses the action;

2.Orders Orsay GmbH to pay the costs.