Judgment of the General Court (First Chamber) of 18 January 2011 – Advance Magazine Publishers v OHIM – Capela & Irmãos (VOGUE)
(Case T-382/08)
Community trade mark – Opposition proceedings – Application for Community word mark VOGUE – Earlier national word mark VOGUE Portugal – No genuine use of the earlier mark – Article 43(2) and (3) of Regulation (EC) No 40/94 (now Article 42(2) and (3) of Regulation (EC) No 207/2009)
1. Community trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the earlier mark – Genuine use – Concept – Criteria for assessment (Council Regulation No 40/94, Art. 43(2) and (3)) (see paras 27-29)
2. Community trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the earlier mark – Genuine use – Application of the criteria to the case in question (Council Regulation No 40/94, Art. 43(2) and (3)) (see paras 30-32)
Re:
ACTION brought against the decision of the Second Board of Appeal of OHIM of 30 June 2008 (Case R 328/2003-2) relating to opposition proceedings between J. Capela & Irmãos, L da and Advance Magazine Publishers, Inc.
Information relating to the case
Applicant for the Community trade mark:
Advance Magazine Publishers, Inc.
Community trade mark sought:
Word mark VOGUE for goods and services in Classes 9, 14, 16, 25 and 41 – Application No 183756
Proprietor of the mark or sign cited in the opposition proceedings:
J. Capela & Irmãos, Lda
Mark or sign cited in opposition:
Portuguese trade mark registration No 143183 of the word mark VOGUE Portugal for goods in Class 25; Portuguese business name No 32046 VOGUE – SAPATARIA
Decision of the Opposition Division:
Opposition upheld in its entirety
Decision of the Board of Appeal:
Appeal dismissed
Operative part
The Court:
1.
Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 30 June 2008 (Case R 328/2003-2);
2.
Dismisses the action as to the remainder;
3.
Orders OHIM to bear its own costs and those incurred by Advance Magazine Publishers, Inc.
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