Judgment of the Court of First Instance (Seventh Chamber) of 23 September 2009 – Arcandor v OHIM – dm drogerie markt (S-HE)

(Case T-391/06)

Community trade mark – Opposition proceedings – Application for the Community word mark S-HE – Earlier national word mark SHE, earlier national and international figurative trade mark She – Relative ground for refusal – No likelihood of confusion – Lack of similarity between the signs – Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009)

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 29-33, 55-68)

Re:

Information relating to the case

Applicant for the Community trade mark:

dm drogerie markt GmbH

Community trade mark sought:

Word mark ‘S-HE’ for goods and services in Classes 3, 9, 14, 16, 18, 24, 25, 28, 32, 38, 41 and 42 – Application No – 2766723

Proprietor of the mark or sign cited in the opposition proceedings:

Arcandor AG, formerly Karstadt Quelle AG

Mark or sign cited in opposition:

German word mark ‘SHE’ for goods in Classes 3 and 25, German figurative mark ‘She’ for goods in Classes 3, 9, 16, 18 and 25, and international figurative mark ‘She’ for goods in Classes 3, 9, 16, 18 and 25

Decision of the Opposition Division:

Opposition upheld

Decision of the Board of Appeal:

Appeal dismissed

Operative part

The Court:

1.Dismisses the action;

2.Orders Arcandor AG, previously Karstadt Quelle AG to pay the costs.