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Judgments nº T-99/06 of Court of First Instance of the European Communities, of September 23, 2009

In Case T-99/06,

Phildar SA, established in Roubaix (France), represented by E. Baud, lawyer,

applicant,

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by A. Folliard-Monguiral, acting as Agent,

defendant,

the other party to the proceedings before the Board of Appeal of OHIM being

Comercial Jacinto Parera, SA, established in Barcelona (Spain),

ACTION against the decision of the Second Board of Appeal of OHIM of 16 January 2006 (Case R 245/2004-2), relating to opposition proceedings between Phildar SA and Comercial Jacinto Parera, SA,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Seventh Chamber),

composed of N.J. Forwood, President, D. -váby (Rapporteur) and E. Moavero Milanesi, Judges,

Registrar: N. Rosner, Administrator,

having regard to the application lodged at the Registry of the Court of First Instance on 30 March 2006,

having regard to the response lodged at the Registry of the Court on 13 June 2006,

further to the hearing on 15 January 2009,

gives the following

Judgment

 Background to the dispute

1         On 26 May 1998 Comercial Jacinto Parera, SA, filed an application for the Community word trade mark FILDOR with the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), pursuant to Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).

2         The goods in respect of which registration was sought fall within Classes 22 to 26 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond, for each of those classes, to the following description:

-        -Ropes, strings, nets, tents, awnings, tarpaulins, sails, sacks and bags; padding and stuffing materials (horsehair, kapok, feathers, seaweed); natural or synthetic fibrous textile materials- (Class 22);

-        -Yarns and threads of all kinds presented in skeins, reels, balls and other forms- (Class 23);

-        -Textiles and knitted fabrics, bed covers and table cloths, soft furnishings- (Class 24);

-        -Clothing and footwear- (Class 25);

-        -Lace and embroidery, ribbons and braid, buttons and snap fasteners, hooks and eyes, pins and needles, artificial flowers- (Class 26).

3         The Community trade mark application was published in the Community Trade Marks Bulletin of 19 March 1999.

4         On 15 June 1999, the applicant, Phildar SA, formerly Les Fils de Louis Mulliez SA, filed a notice of opposition to that application for registration under Article 42(1) of Regulation No 40/94 (now Article 41(1) of Regulation No 207/2009), on the basis of Article 8(1)(a) and (b) of Regulation No 40/94 (now Article 8(1)(a) and (b) of Regulation No 207/2009) (opposition proceedings B 165 235). The opposition was based on the following earlier rights of the applicant:

-        French word trade mark No 744 927 FILDOR registered on 22 April 1968;

-        International semi-figurative trade mark No 217 674, reproduced below, registered on 25 February 1979 with effect in Germany, Italy...

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