JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

11 November 2009 (*)

(Community trade mark – Opposition proceedings – Application for Community figurative mark GREEN by missako – Earlier national and Community figurative marks MI SA KO – No likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

In Case T‑162/08,

Frag Comercio Internacional, SL, established in Esparreguera (Spain), represented by E. Sugrañes Coca, lawyer,

applicant,

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by W. Verburg, acting as Agent,

defendant,

the other party to the proceedings before the Board of Appeal of OHIM being

Tinkerbell Modas LTDA, established in São Paulo (Brazil),

ACTION brought against the decision of the Second Board of Appeal of OHIM of 14 February 2008 (Case R 1527/2006‑2) relating to opposition proceedings between Tinkerbell Modas LTDA and Frag Comercio Internacional, SL,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fifth Chamber),

composed of M. Vilaras, President, M. Prek (Rapporteur) and V. M. Ciucă, Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Registry of the Court of First Instance on 29 April 2008,

having regard to the response lodged at the Court Registry on 30 July 2008,

having regard to the fact that no application for a hearing to be arranged was submitted by the parties within the period of one month from notification of closure of the written procedure, and having therefore decided, acting upon a report of the Judge-Rapporteur, to give a ruling without an oral procedure, pursuant to Article 135a of the Rules of Procedure of the Court of First Instance,

gives the following

Judgment

 Background to the case

1        On 13 February 2004, Tinkerbell Modas LTDA filed a Community trade mark application at the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) pursuant to Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)).

2        The mark in respect of which registration was applied for is the figurative sign shown below:

3        The goods in respect of which registration of the mark was applied for are in Classes 3, 25 and 35 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond to the following description:

–        Class 3: ‘Perfumery’;

–        Class 25: ‘Clothing, outerwear and clothing accessories’;

–        Class 35: ‘Business advisory and management services; business organisation consultancy; business research; franchising; import-export of goods’.

4        The registration application was published in Community Trade Marks Bulletin No 51/2004 of 20 December 2004.

5        On 18 March 2005, the applicant, Frag Comercio Internacional, SL, filed a notice of opposition pursuant to Article 42 of Regulation No 40/94 (now Article 41 of Regulation No 207/2009) against registration of the mark applied for, in respect of all the goods covered by the application. In support of its opposition, the applicant alleged a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 40/94 (now Article 8(1)(b) of Regulation No 207/2009). The opposition was based on Community trade mark No 1767078, registered on 14 September 2001 for ‘leather and imitations of leather, and goods made of these materials and not included in other classes; animal skins; handbags and purses; trunks and travelling bags; umbrellas, parasols and walking sticks; whips, harness and saddlery’ in Class 18 and ‘clothing, footwear, headgear’ in Class 25, and on Spanish trade mark No 2310129, registered on 6 November 2000 for ‘retail services in shops’ in Class 35 (‘the earlier marks’), both corresponding to the figurative sign reproduced below:

6        By decision of 25 September 2006, the Opposition Division rejected the opposition, finding that there was no likelihood of confusion between the earlier marks and the mark applied for.

7        On 23 November 2006, the applicant filed an appeal with OHIM against the Opposition Division’s decision, pursuant to Articles 57 to 62 of Regulation No 40/94 (now Articles 58 to 64 of Regulation No 207/2009).

8        By decision of 14 February 2008 (‘the contested decision’), the Second Board of Appeal of OHIM dismissed the appeal in its entirety and upheld the decision of the Opposition Division, on the ground that the conditions under Article 8(1)(b) of Regulation No 40/94 were not fulfilled.

9        In the first place, the Board of Appeal compared the goods and services in question. It found, first of all, that the goods in Classes 18 and 25 covered by the earlier Community mark and those in Class 25 covered by the mark applied for were identical or very similar. Next, it considered that the goods in Classes 18 and 25 covered by the earlier Community mark bore no similarity to the ‘perfumery’ in Class 3 of the mark applied for because of their different nature, intended purpose and distribution channels. Lastly, it found that there was no similarity between the ‘retail services in shops’ covered by the earlier Spanish mark and the services in Class 35 covered by the mark applied for. It pointed out that details had to be provided with regard to the goods or types of goods concerned by ‘retail services in shops’, in accordance with Communication No 7/05 of the President of OHIM of 31 October 2005 concerning the registration of Community trade marks for retail services. It found, however, that such details were lacking in the present case and that, accordingly, the services covered by the earlier Spanish mark were too vague to be compared with the services covered by the mark applied for.

10      In the second place, the Board of Appeal found, with respect to the comparison of the signs, that they were visually different, given the lack of the word ‘green’ and of the representation of a sun in the earlier marks, and because of the near illegibility of the words ‘by missako’ due to their size and the fact that the handwriting is not very neat. Phonetically, it found that the signs were different. Conceptually, it found that no comparison could be made between the signs at issue.

11      In the third place, it found that some degree of distinctiveness could be recognised in the word element ‘green’ in the mark applied for. As to the earlier marks, it considered that they could be found to have only an average degree of distinctiveness, as no evidence of their reputation or enhanced distinctiveness had been adduced. In the light of those findings, it made an overall assessment of the likelihood of confusion between the marks at issue and held that there was no such likelihood.

 Forms of order sought

12      The applicant claims that the Court should:

–        annul the contested decision;

–        reject the application for registration of Community trade mark No 3663234;

–        order Tinkerbell Modas LTDA to pay the costs.

13      OHIM contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

 Admissibility of the second head of claim

14      OHIM contends that the second head of claim, seeking rejection of the application for registration of the mark applied for, is not admissible, as it is not for the Court to issue directions to OHIM.

15      In that regard it must be borne in mind that, under Article 63(6) of Regulation No 40/94 (now Article 65(6) of Regulation No 207/2009), OHIM is required to take the measures necessary to comply with the judgment of the Community judicature. The Court of First Instance is thus not entitled to issue directions to OHIM. It is for the latter to draw the appropriate inferences from the operative part of this judgment and the grounds on which it is based. As the applicant’s second head of claim must be construed as asking the Court to issue directions, it must be declared inadmissible (Case T‑331/99 Mitsubishi HiTec Paper Bielefeld v OHIM (Giroform) [2001] ECR II‑433, paragraph 33, and Case T‑34/00 Eurocool Logistik v OHIM (EUROCOOL) [2002] ECR II‑683, paragraph 12).

 Admissibility of new evidence

16      OHIM observes that the applicant invoked the reputation of the earlier Spanish mark for the first time before this Court and that it attached three documents to the application initiating proceedings to demonstrate that reputation. OHIM claims that those documents constitute new evidence in that they were never produced before it. It argues that the Court must therefore declare them to be inadmissible; otherwise, the case will be considered anew on the basis of different facts from those presented before the Board of Appeal. No special circumstances justify the production of those documents before the Court; they could have been produced in the proceedings before OHIM.

17      It should be noted that, according to settled case-law, the purpose of actions before the Court is to review the legality of decisions of the Boards of Appeal for the purposes of Article 63 of Regulation No 40/94 (now Article 65 of Regulation No 207/2009) and, in proceedings for annulment, the legality of the contested measure must be assessed on the basis of the elements of fact and of law existing at the time when the measure was adopted (Case T‑164/03 Ampafrance v OHIM – Johnson & Johnson (monBeBé) [2005] ECR II‑1401, paragraph 29, and Case T‑336/03 Éditions Albert René v OHIM – Orange (MOBILIX) [2005] ECR II‑4667, paragraph 16). It is thus not the Court’s function to re-evaluate the factual circumstances in the light of evidence adduced for the first time before it (Case T‑169/03 Sergio Rossi v OHIM – Sissi Rossi (SISSI ROSSI) [2005] ECR II‑685, paragraphs 24 and 25). To admit such documents would be contrary to Article 135(4) of the Rules of Procedure of the Court of First Instance, which states that the parties’ pleadings may not change the subject-matter of the proceedings before the Board of Appeal.

18      It follows that the three disputed documents produced for the first time before this Court must be declared inadmissible.

 Substance

 Arguments of the parties

19      The applicant puts forward a single plea in law in support of its action, alleging infringement of Article 8(1)(b) of Regulation No 40/94.

20      In the first place, with respect to the comparison of the goods and services in question, the applicant concurs with the contested decision in that the goods in Classes 18 and 25 covered by the earlier Community mark are identical or very similar to those in Class 25 covered by the mark applied for. By contrast, the ‘perfumery’ in Class 3 covered by the mark applied for is claimed to be very similar to the goods and services covered by the earlier Community mark by reason of their complementary nature. The same is true of the services in Class 35 covered by the mark applied for and the ‘retail services in shops’ covered by the earlier Spanish mark.

21      In the second place, with respect to the comparison of the signs, the applicant submits that the Board of Appeal made an incorrect assessment of the degree of similarity between the signs at issue by failing to find that the element ‘missako’ was the predominant, most distinctive element of the mark applied for. The applicant adds that the preposition ‘by’ establishes a clear link between a company and its main trade mark, particularly in the fashion sector. As to the element ‘green’, it will be perceived as a term which is descriptive or devoid of distinctive character. The applicant further complains that the Board of Appeal attached excessive importance to the large or small size of the elements making up the mark applied for and failed to take account of the fact that the mark could be reproduced in larger format.

22      In the third place, the applicant relies on the reputation of the Spanish mark MI SA KO.

23      In the fourth place, with respect to the overall assessment of the likelihood of confusion, the applicant argues that there is such a likelihood in respect of the marks at issue. It submits that the average consumer will perceive the mark ‘GREEN by missako’ as a new collection or a line of ecological products derived from the earlier marks.

24      OHIM disputes the applicant’s arguments.

 Findings of the Court

25      Under Article 8(1)(b) of Regulation No 40/94, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for is not to be registered if, because of its identity with, or similarity to, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected.

26      According to settled case-law, the likelihood of confusion on the part of the public, defined as the risk that the public might believe that the goods or services in question come from the same undertaking or, as the case may be, from economically-linked undertakings, must be assessed globally, taking into account all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods or services (Case C‑39/97 Canon [1998] ECR I‑5507, paragraphs 16 and 17, and Case T‑162/01 Laboratorios RTB v OHIM – Giorgio Beverly Hills (GIORGIO BEVERLY HILLS) [2003] ECR II‑2821, paragraphs 30 to 32).

27      In the present case, as the earlier marks are a Spanish mark and a Community mark, the protection extends to all Member States and to Spain in particular. The goods in question are everyday consumer goods and the services in question are intended for professionals. Therefore, it is appropriate to endorse the Board of Appeal’s analysis, which has moreover not been disputed by the applicant, to the effect that the relevant public in respect of which the likelihood of confusion falls to be assessed is made up, respectively, of average consumers who are reasonably well informed and reasonably observant and circumspect, and specialised consumers with a high level of attention.

–        The comparison of the goods and services

28      According to settled case-law, in assessing the similarity of the goods or services concerned, all the relevant factors pertaining to the relationship between those goods or services should be taken into account. Those factors include, inter alia, their nature, their intended purpose, their method of use and whether they are in competition with each other or are complementary (Canon, paragraph 26 above, paragraph 23, and Case T‑388/00 Institut für Lernsysteme v OHIM – Educational Services (ELS) [2002] ECR II‑4301, paragraph 51).

29      First, as correctly held by the Board of Appeal in paragraph 20 of the contested decision, the goods in Classes 18 and 25 covered by the earlier Community mark are identical or similar to the goods in Class 25 covered by the mark applied for.

30      Secondly, the Board of Appeal did not err in finding, in paragraph 20 of the contested decision, that the goods in Classes 18 and 25 covered by the earlier Community mark were not complementary in relation to the ‘perfumery’ in Class 3 covered by the mark applied for. In that regard, the Court has held previously that perfumery goods and leather goods in Class 18 cannot be considered similar. Perfumery goods and leather goods are plainly different as regards both their nature and their intended purpose or their method of use. Moreover, there is nothing that enables them to be regarded as in competition with each other or functionally complementary. The same conclusion must be drawn concerning a comparison between perfumery goods and clothing in Class 25. Those goods, as of themselves, also differ as regards both their nature and their intended purpose or their method of use. There is nothing, either, that enables them to be regarded as in competition with each other or complementary (Case T‑150/04 Mülhens v OHIM – Minoronzoni (TOSCA BLU) [2007] ECR II‑2353, paragraphs 31 and 32).

31      Thirdly, the services in Class 35 covered by the mark applied for cannot be compared with the retail services in shops covered by the earlier Spanish mark. It follows from Case C‑418/02 Praktiker Bau- und Heimwerkermärkte [2005] ECR I‑5873, paragraph 49, that, for the purposes of registration of a trade mark covering such services, although it is not necessary to specify them in detail, it is necessary to specify the goods or types of goods to which those services relate. In the present case, no details have been provided as to the goods or types of goods to which the services covered by the earlier Spanish mark relate. Accordingly, the Board of Appeal was correct in finding that those services covered by the earlier Spanish mark were too vague to enable a proper comparison to be made with those under the mark applied for.

32      In those circumstances, it is appropriate to determine whether the Board of Appeal’s analysis of the signs at issue and of whether there is a likelihood of confusion is correct.

–        The comparison of the signs

33      As regards the visual, phonetic or conceptual similarity of the signs at issue, the global assessment of the likelihood of confusion must be based on the overall impression created by them, bearing in mind, in particular, their distinctive and dominant components. The perception of marks in the mind of the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood. In that regard, the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details (Case C‑251/95 SABEL [1997] ECR I‑6191, paragraph 23, and Case C‑342/97 Lloyd Schuhfabrik Meyer [1999] ECR I‑3819, paragraph 25).

34      According to settled case-law, moreover, a complex trade mark cannot be regarded as being similar to another trade mark which is identical or similar to one of the components of the complex mark, unless that component forms the dominant element within the overall impression created by the complex mark. That is the case where that component is likely to dominate, by itself, the image of that mark which the relevant public keeps in mind, with the result that all the other components of the mark are negligible within the overall impression created by it (Case T‑6/01 Matratzen Concord v OHIM – Hukla Germany (MATRATZEN) [2002] ECR II‑4335, paragraph 33, and Case T‑28/05 Ekabe International v OHIM – Ebro Puleva (OMEGA3) [2007] ECR II‑4307, paragraph 43).

35      However, it is not appropriate to take into account just one component of a complex trade mark and to compare it with another mark. On the contrary, such a comparison must be made by examining each of the marks in question as a whole, which does not mean that the overall impression conveyed to the relevant public by a complex trade mark may not, in certain circumstances, be dominated by one or more of its components (order in Case C‑3/03 P Matratzen Concord v OHIM [2004] ECR I‑3657, paragraph 32; Case C‑120/04 Medion [2005] ECR I‑8551, paragraph 29; and Case C‑334/05 P OHIM v Shaker [2007] ECR I‑4529, paragraph 41).

36      In the present case, both the mark applied for and the earlier marks are figurative marks. The earlier marks comprise a vertical rectangle divided into three equal parts. A group of two capital letters in black is placed in each of the parts, namely ‘mi’, ‘sa’ and ‘ko’, which, read from top to bottom, give the word ‘misako’. The mark applied for is made up of three elements: a representation of a sun and its rays, positioned at the top of the mark, the word element ‘green’ in stylised letters, positioned just below the representation of the sun, and the word element ‘by missako’ in very small letters in the lower right-hand part of the mark.

37      In the first place, for the purposes of comparing the signs, the applicant put forward an argument seeking to have the expression ‘by missako’ recognised as the dominant element of the mark applied for. Given the bearing of that question on the assessment of the similarity of the signs, the argument must be considered. This involves determining whether the assessment conducted by the Board of Appeal of the dominant and distinctive nature of the various elements of the mark applied for is correct. It must be noted, as a first point, that the representation of the sun has an important place within the mark applied for, in that it is positioned in the centre and covers almost two thirds of the area. Next, the position of the word element ‘green’ is also important within the mark, as it is represented in large-typeface, stylised capital letters in black and takes up about one third of the area. As observed by the Board of Appeal in paragraph 28 of the contested decision, those two elements thus occupy the major portion of the mark applied for and are therefore striking in the overall impression of the mark.

38      Next, as regards the word ‘green’, although it is true that names of colours cannot in isolation possess a high degree of distinctiveness, it is nevertheless appropriate to endorse the Board of Appeal’s finding, in paragraph 32 of the contested decision, that the word ‘green’ should be regarded as having some level of distinctiveness because, in addition to its size, of the original typeface in which it is reproduced and of the stylised nature of the ‘g’ bringing to mind the sun image at the heart of the figurative element.

39      Lastly, as regards the word element ‘by missako’, the Board of Appeal correctly held, in paragraph 28 of the contested decision, that those words were almost illegible because of their size and that the handwriting made them difficult to decipher. It follows, first, that the dominant nature of the word ‘green’ and of the representation of the sun are thereby further reinforced and, secondly, that the word element ‘by missako’ is negligible in nature.

40      In that regard, account should be taken of the fact that the average consumer only rarely has the chance to make a direct comparison between the different marks but has to place his trust in the imperfect image of them that he has retained in his mind (Case T‑104/01 Oberhauser v OHIM – Petit Liberto (Fifties) [2002] ECR II‑4359, paragraph 28). The dominant word element ‘green’ and the representation of the sun will accordingly be of major importance in the overall impression of the sign. When the average consumer is led to seek out and select a product covered by the mark applied for, those elements retained in the visual memory will be decisive. Thus, if the mark is taken as a whole, it is the representation of the sun and the word element ‘green’ which dominate the impression retained by the average consumer in his mind.

41      The Court accordingly finds that, contrary to the applicant’s assertions, the Board of Appeal did not err in law in holding that, unlike the element ‘green’, the expression ‘by missako’ was in no way the dominant element in the overall impression conveyed by the mark applied for.

42      In the second place, as regards the visual comparison, the Board of Appeal was correct in holding, in paragraph 28 of the contested decision, that the figurative elements and the structure of the marks at issue are different. The mark applied for includes the representation of a sun and the word ‘green’, which cover almost its entire area, as mentioned in paragraph 37 above. Those elements are not to be found in the earlier marks. Similarly, the three groups of two letters , ‘mi’, ‘sa’ and ‘ko’, in the earlier marks are arranged in an original manner, namely vertically in a rectangle. Accordingly, the Board of Appeal’s finding that the overall visual impression is different must be endorsed.

43      Even though the Community mark applied for also contains the word element ‘by missako’, it is clear, as the Board of Appeal found, that the near illegibility of those words will have no influence on how the average consumer perceives them visually. A sign which is so difficult to decipher, understand or read that the reasonably observant and circumspect consumer cannot manage to do so, without making an analysis which goes beyond what may be reasonably expected of him in a purchasing situation, may be considered to be illegible (judgment of 2 July 2008 in Case T‑340/06 Stradivarius España v OHIM – Ricci (Stradivari 1715), not published in the ECR, paragraph 34). That is so in the present case with respect to the word element ‘by missako’. The average consumer will have even greater difficulty reading it because he does not proceed to analyse the various details of the mark when making a purchase (see, to that effect, SABEL, paragraph 33 above, paragraph 23; Lloyd Schuhfabrik Meyer, paragraph 33 above, paragraph 25; and judgment of 20 September 2007 in Case C‑193/06 P Nestlé v OHIM, not published in the ECR, paragraph 34).

44      It is, moreover, not disputed that consumers generally take more note of the beginning of a sign than of its end (Case T‑112/03 L’Oréal v OHIM – Revlon (FLEXI AIR) [2005] ECR II‑949, paragraphs 64 and 65, and judgment of 30 November 2006 in Case T‑43/05 Camper v OHIM – JC (BROTHERS by CAMPER), not published in the ECR, paragraph 72).

45      The applicant is, moreover, incorrect in putting forward two arguments relating to the size of the various elements of the mark applied for, on the one hand, and that of the mark applied for as a whole, on the other. It cannot properly rely on the fact that it could enlarge the size of the word element ‘by missako’ according to the requirements of the moment, just as it cannot justifiably maintain that those words are perfectly legible on advertising posters.

46      It must be emphasised that the examination of the similarity of the marks in dispute takes them into consideration as a whole, as they are registered or sought to be registered. Figurative marks are, by nature, exclusively protected in accordance with the fixed nature of their morphology covered by their registration. In that regard, as OHIM correctly states on its internet site, it must be borne in mind that a figurative mark is defined as a specific representation of word or graphic characteristics or a combination of word and graphic elements, whether or not in colour. A complex figurative mark consists of two or more categories of signs, combining, for example, letters and graphics (Case T‑211/03 Faber Chimica v OHIM – Nabersa (Faber) [2005] ECR II‑1297, paragraph 33).

47      It is therefore not necessary, for the purposes of assessing similarity, to take account of any other graphic representation or any representation in enlarged format which the mark applied for might take on in future (see, to that effect and by analogy, Faber, paragraph 46 above, paragraphs 36 and 37; judgment of 13 February 2007 in Case T‑353/04 Ontex v OHIM – Curon Medical (CURON), not published in the ECR, paragraph 74; and judgment of 22 May 2008 in Case T‑254/06 Radio Regenbogen Hörfunk in Baden v OHIM (RadioCom), not published in the ECR, paragraph 43).

48      OHIM was therefore correct in finding that there was no visual similarity between the signs at issue.

49      In the third place, regarding the phonetic comparison, it must be noted, first of all, that, when speaking, the average consumer will tend to abbreviate a mark comprising a number of terms in order to make it easier to pronounce (see, to that effect, BROTHERS by CAMPER, paragraph 44 above, paragraph 75). Next, as observed in paragraph 44 above, consumers generally take more note of the beginning of a sign than of its end. Lastly, it is clear that, because the element ‘by missako’ is illegible and, more generally, it is negligible, there is a strong probability that the term ‘missako’ will be omitted when the mark applied for is pronounced and that, therefore, the mark will be referred to by the word ‘green’. In the light of those findings, the Court finds that the signs at issue are different phonetically.

50      In the fourth place, conceptually, the Court finds that the word ‘misako’ does not have any meaning in any of the languages of the European Union. In respect of the mark applied for, the English word ‘green’ denotes a colour but is also used in the field of ecology and golf. The word ‘by’ is commonly used in trade, particularly in the fashion industry, to indicate the origin of goods. Assuming that they are read as a whole, the words ‘green by missako’ will thus be understood as ‘green’ from ‘missako’. The Board of Appeal was therefore right in finding, in paragraph 29 of the contested decision, that no conceptual comparison could be made between the signs at issue.

51      It follows that the Board of Appeal did not err in holding that there was no similarity between the signs resulting from the overall impression conveyed by them, particularly on account of the near illegibility of ‘by missako’.

52      In those circumstances, the Court finds that, even though some of the goods covered by the marks at issue are identical or similar, the visual, phonetic and conceptual differences between the signs are sufficient grounds for finding that there is no likelihood of confusion in the perception on the part of the relevant public.

53      For the purposes of applying Article 8(1)(b) of Regulation No 40/94, a likelihood of confusion presupposes both that the mark applied for and the earlier mark are identical or similar, and that the goods or services covered in the application for registration are identical or similar to those in respect of which the earlier mark is registered. Those conditions are cumulative (Case C‑106/03 P Vedial v OHIM [2004] ECR I‑9573, paragraph 51).

54      Since one of the essential conditions for applying Article 8(1)(b) of Regulation No 40/94 has not been satisfied, the Board of Appeal was correct in finding that there was no likelihood of confusion between the mark applied for and the earlier mark.

55      The action must accordingly be dismissed.

 Costs

56      Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful it must be ordered to pay the costs, in accordance with the form of order sought by OHIM.

On those grounds,

THE COURT OF FIRST INSTANCE (Fifth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Frag Comercio Internacional, SL, to pay the costs.

Vilaras

Prek

Ciucă

Delivered in open court in Luxembourg on 11 November 2009.

[Signatures]