ECLI:EU:T:2009:475

Judgment of the Court of First Instance (Third Chamber) of 30 November 2009 – Esber v OHIM – Coloris Global Coloring Concept (COLORIS) (Case T-353/07) Community trade mark – Opposition proceedings – Application for Community figurative mark COLORIS – Earlier national word mark COLORIS – Relative ground for refusal – Genuine use of the earlier trade mark – Article 15(2)(a) and Article 43(2) and (3) of Regulation (EC) No 40/94 (now Article 15(1)(a) and Article 42(2) and (3) of Regulation (EC) No 207/2009) Community trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the earlier mark – Use in a form without differences capable of affecting the distinctive character of the trade mark (Council Regulation No 40/94, Arts 15(2)(a) and 43(2) and (3)) (see paras 36, 50) Re: ACTION brought against the decision of the First Board of Appeal of OHIM of 28 June 2007 (Case R 1060/2006‑1), concerning opposition proceedings between Coloris Global Coloring Concept and Esber, SA. Information relating to the case Applicant for the Community trade mark: Esber, SA Community trade mark sought: Figurative mark containing the word COLORIS for goods in Class 2 – Application No 2817732 Proprietor of the mark or sign cited in the opposition proceedings: Coloris Global Coloring Concept Mark or sign cited in opposition: French national word mark COLORIS for goods in Class 2 (No 98/717642) 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 Esber, SA to pay the costs.