7.11.2009

Official Journal of the European Union

C 267/43

(Case C-342/09 P)

2009/C 267/75

Language of the case: English

Parties

Appellant: Victor Guedes — Indústria e Comércio, SA (represented by: B. Braga da Cruz, advogado)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Consorci de l'Espai Rural de Gallecs

Form of order sought

The appellant claims that the Court should:

—Annul the decision of 11th of June 2009 of the Court of First Instance in case T-151/08 (Related matters: decision of 16th January 2008 given in case R 986/2007-2 by the Second Board of Appeal of the Office for Harmonization in the Internal Market; decision of 27th April 2007 of the Trade Marks Department of the Office for Harmonisation in the Internal Market relating to Opposition Proceedings No. B 828634), also in accordance with the applicable provisions of Community law;

—Refuse the grant of the registration of Community trademark no. 3 710 597 in respect of the goods in classes 29 and 31;

—Order the respondent to bear the costs of the proceedings

Pleas in law and main arguments

The decision given by the Trade Marks Department of the OHIM considered that some of the products in question are identical or display clear affinity among them, but deemed the conflicting trademarks to be distinct, without ascertaining the reputation of the earlier trademark ‘GALLO’.

The Second Board of Appeal followed this finding, mentioning that, even though the reputation of the earlier trademark ‘GALLO’ was duly proved, the trademarks in question are distinct.

The Court of First Instance of the European Communities agreed with the finding of the Board of Appeal as regards the fact that the trademarks in question display differences from a phonetic, graphic and conceptual point of view.

The Appellant does not agree with this finding, for he considers that the trademarks GALLO and GALLECS designate products which are identical or display clear affinity and are similar.

In fact, there are several decisions from Community instances which consider that trademarks which share the same initial elements are confusingly similar and thus cannot coexist in the market.

Moreover, it was considered and recognised that the trademark GALLO has a reputation, which confers enhanced distinctiveness on the earlier mark in Portugal.

Thus, there is a real possibility that the respondent would take unfair advantage of the reputation of the earlier Portuguese trademark ‘GALLO’ of the Appellant.

The appellant submits, therefore, that the contested judgment violates the provisions of Article 8 (l)(b) and (5) of the Community Trademark Regulation (CTMR).