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General Court: Darjeeling (lingerie) held to take unfair advantage of the reputation of Darjeeling tea

Today the General Court issued 4 judgments related to the rights over "Darjeeling"  (see here cases T-624/13, T 625/13, T-626/13  and T-627/13)

Applicant - Delta Lingerie (France)

The Tea Board (India)- earlier CTM's

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Classes 25, 35 and 38 including Women’s undergarments and day and night lingerie and related retail services"

Class 30 tea

The Opposition Division and the BoA rejected the opposition on the ground that, first, regarding the application of Article 8(1) CTMR, the goods and services covered by the signs at issue were dissimilar and, second, regarding the application of Article 8(5) of that regulation, the evidence provided by the applicant was insufficient to establish that the earlier Community collective marks had a reputation with the relevant public.

The Tea Board successfully appealed to the Court.

The GC firstly dismissed the appellant's claim that the Board of Appeal had failed, in its global assessment of the likelihood of confusion to take into account the actual or potential geographical origin of the goods or services covered by the signs at issue.

However, the GC upheld the claim regarding Article 8(5) CTMR : in light  of the fact that the hypothetical premiss on which the contested decision is based refers to a reputation of exceptional strength,  sothe positive qualities evoked by the word element ‘darjeeling’ shared by the signs at issue are capable of being transferred to some of the goods and services covered by the mark applied for and, as a result, of strengthening the power of attraction of that mark.

So far as the goods in Class 25, the mark applied for is capable of benefiting from the positive qualities conveyed by the earlier trade marks and, more specifically, the image of sophistication or exotic sensuality conveyed by the word element ‘darjeeling’. A risk of an unfair advantage cannot therefore be ruled out in the present case in respect of the goods in Class 25 covered by the mark applied for.

Therefore the Court annulled the contested decision in that regard and  Class 35  services‘[r]etailing of women’s underwear and lingerie, perfumes, toilet water and cosmetic lotions, household and bath linen’.

Posted by: Laetitia Lagarde @ 13.37
Tags: general court, darjeeling, tea, lingerie, opposition,
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