Judgments nº T-70/08 of The General Court, September 09, 2010

• Resolution Date: September 09, 2010
• Issuing Organization: The General Court
• Decision Number: T-70/08

In Case T‑70/08,

Axis AB, established in Lund (Sweden), represented by J. Norderyd, 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

Etra Investigación y Desarrollo, SA, established in Valencia (Spain),

ACTION brought against the decision of the Second Board of Appeal of OHIM of 27 November 2007 (Case R 334/2007-2) relating to opposition proceedings between Etra Investigación y Desarrollo, SA and Axis AB,

THE GENERAL COURT (Fifth Chamber),

composed of M. Vilaras, President, M. Prek and V.M. Ciucă (Rapporteur), Judges,

Registrar: N. Rosner, Administrator,

having regard to the application lodged at the Court Registry on 12 February 2008,

having regard to the response lodged at the Court Registry on 9 June 2008,

further to the hearing on 29 April 2010,

gives the following

Judgment

Background to the dispute

1 On 17 June 2004, the applicant – Axis AB (‘Axis’) – filed an application for registration of a Community trade mark at 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 (‘Regulation No 40/94’; 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 mark for which registration was sought is the word mark ETRAX.

3 The goods and services in respect of which registration was sought fall, following the restriction made during the proceedings before OHIM, within Classes 9 and 42 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.

4 The Community trade mark application was published in Community Trade Marks Bulletin No 31/2005 of 1 August 2005.

5 On 14 October 2005, Etra Investigación y Desarrollo, SA filed a notice of opposition under Article 42 of Regulation No 40/94 (now Article 41 of Regulation No 207/2009) to registration of the trade mark applied for in respect of the goods and services referred to in paragraph 3 above.

6 The opposition was based on the following earlier marks:

– Spanish figurative mark No 2 194 122, filed on 5 November 1998 and registered on 22 November 1999 in respect of goods in Class 9 (‘Scientific, nautical, surveying, electrical, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), life-saving and teaching apparatus; apparatus for recording, transmission or reproduction of sound or images; magnetic data carriers, recording discs; automatic vending machines and mechanisms for coin-operated apparatus; cash registers, calculating machines, data processing equipment and computers; fire-extinguishing apparatus’), represented as follows:

– Spanish figurative mark No 2 413 572, filed on 9 July 2001 and registered on 8 January 2002 in respect of goods in Class 9 (‘Scientific, nautical, surveying, electrical, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), life-saving and teaching apparatus; apparatus for recording, transmission or reproduction of sound or images; magnetic...