Community trade mark - Opposition proceedings - Application for Community word mark VOGUE - Earlier national word mark VOGUE Portugal - Absence of 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).

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.