In this case, the Opponent had claimed that the CTM applicant would take unfair advantage of the earlier mark related to the celebrity Severiano Ballesteros, famous golf player, and its  expression 'Seve Trophy', used for a famous golf tournament. The Board of appeal had cancelled the contested trademark finding likelihood of confusion for goods and services in classes 3, 14, 18 , 25, 28, 35 and 41 and Class 9 ‘teaching apparatus and instruments’ on the grounds of Article 8(1) (b) CTMR. However, it rejected the opposition as regards the rest of the goods in Class 9 finding no similarity (the contested goods not including DVD or video games which could be commercialized in relation with golf tournament merchandising, see par.55).

CTM  Earlier mark

On Article 8 (5) grounds, reputation for the earlier mark was established for Class 41 services “organization of sports competitions” but the activities fields being so far one from another with Class 9,  it resulted impossible that the contested trademark would lessen the attractive power of the earlier trademarks.

In its judgment T-192/09 the Court confirmed the Board's findings and rejected the opponent’s following arguments: is irrelevant in the assessment of Article 8 (5) the fact that the contested trademark on the register would affect the opponent’s commercial agreements with possible sponsors where they find out not all the trademarks “Seve Trophy” belong to it; are inadmissible the bad faith claims which don’t belong to relative grounds analysis (should be plead under Article 52 (1) b)) and the claim about taking advantage of the right of a protected celebrity name (claimable under Article 53 (2) (a)).