Judgment of the Court of First Instance (Fourth Chamber) of 29 April 2009 – Bodegas Montebello v OHIM – Montebello (MONTEBELLO RHUM AGRICOLE)
(Case T-430/07)
Community trade mark – Opposition proceedings – Application for the figurative Community trade mark MONTEBELLO RHUM AGRICOLE – Earlier national word mark MONTEBELLO – Relative ground for refusal – No likelihood of confusion – Absence of similarity between the goods – Article 8(1)(b) of Regulation (EC) No 40/94
1. 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 34, 36, 39)
2. Community trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the earlier mark – Partial use (Council Regulation No 40/94, Art. 43(2) and (3)) (see paras 42-43)
Re:
ACTION brought against the decision of the Second Board of Appeal of OHIM of 7 September 2007 (Case R 223/2007-2), relating to opposition proceedings between Bodegas Montebello, SA and Montebello SARL.
Information relating to the case
Applicant for the Community trade mark:
Montebello SARL
Community trade mark sought:
Figurative mark MONTEBELLO RHUM AGRICOLE for goods in Class 33 – Application No 2666386
Proprietor of the mark or sign cited in the opposition proceedings:
Bodegas Montebello, SA
Mark or sign cited in opposition:
Spanish word mark MONTEBELLO for goods in Class 33 – Application No 1148196
Decision of the Opposition Division:
Opposition upheld
Decision of the Board of Appeal:
Appeal allowed, Decision of the Opposition Division annulled.
Operative part
The Court:
1.
Dismisses the action;
2.
Orders Bodegas Montebello, SA to pay the costs.
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