16.5.2009

EN

Official Journal of the European Union

C 113/40

(Case T-106/09)

2009/C 113/80

Language in which the application was lodged: English

Parties

Applicant: adp Gauselmann GmbH (Espelkamp, Germany) (represented by: P. Koch Moreno, lawyer)

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

Other party to the proceedings before the Board of Appeal: Archer Maclean (Banbury, United Kingdom)

Form of order sought

—Declare non-conformity of the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 January 2009 in case R 1266/2007-1 with Council Regulation 40/94;

—Declare that Community trade mark application No 4 290 227 for classes 9 and 28 falls within the prohibition contained in Article 8(1)(b) of Council Regulation 40/94; and

—Order OHIM and, as appropriate, the intervener in the proceedings to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark ‘Archer Maclean’s Mercury’, for goods in classes 9, 16 and 28 — application No 4 290 227

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited: German trade mark registration of the word mark ‘Merkur’ for goods and services in classes 6, 9, 28, 35, 37, 41 and 42

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 40/94 as the Board of Appeal wrongly concluded that there were no visual, phonetic or conceptual identity similarities between the trade marks concerned, as well as that there was no identity of goods for classes 9 and 28, and therefore no likelihood of confusion between the trade marks concerned.