6.12.2008

EN

Official Journal of the European Union

C 313/35

(Case T-374/08)

(2008/C 313/63)

Language in which the application was lodged: German

Parties

Applicant: Aldi Einkauf GmbH & Co. OHG (Essen, Germany) (represented by: N. Lützenrath, U. Rademacher, L. Kolks and C. Fürsen, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal of OHIM: Illinois Tools Works, Inc. (Glenview, United States)

Form of order sought

—annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 25 June 2008 in Case No R 952/2007-2;

—order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Aldi Einkauf GmbH & Co. OHG

Community trade mark concerned: the figurative mark ‘TOP CRAFT’ for goods in Classes 1 and 3 (Application No 3 444 767)

Proprietor of the mark or sign cited in the opposition proceedings: Illinois Tools Works, Inc.

Mark or sign cited in opposition: The national figurative marks ‘krafft’ for goods in Classes 1 and 3

Decision of the Opposition Division: Opposition upheld in part

Decision of the Board of Appeal: Annulment of the Opposition Division's decision in so far as the opposition in respect of the goods ‘Chemicals used in agriculture, horticulture and forestry’ in Class 1 was upheld

Pleas in law: Infringement of Article 8(1)(b) and Article 43(2) and (3) of Council Regulation No 40/94 and of Rule 22(3) of Commission Regulation No 2868/95 because:

—the documents submitted by the opponent cannot prove use of the opposing marks,

—there are significant graphical differences between the marks at issue,

—the word element ‘TOP’ is not descriptive and of slight distinctive character, and

—owing to the clear graphical differences and the additional word element ‘TOP’ in the mark applied for, a likelihood of confusion may be ruled out even if the goods are identical or similar.