16.5.2009

EN

Official Journal of the European Union

C 113/39

(Case T-92/09)

2009/C 113/78

Language in which the application was lodged: English

Parties

Applicant: Strategi Group Ltd (Manchester, United Kingdom) (represented by: N. Saunders, Barrister)

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

Other party to the proceedings before the Board of Appeal: Reed Business Information (Issy-Les-Moulineaux, France)

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 18 December 2008 in case R 1581/2007-2 and remit the application to OHIM to allow it to proceed; and

—Order OHIM (and any intervening parties) to pay the costs of these proceedings and those of the appeal proceedings before the Board of Appeal of OHIM.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘STRATEGI’, for services in class 35

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

Mark or sign cited: French trade mark registration No 1 240 001 of the word mark ‘Stratégies’ for goods and services in classes 9, 16, 28, 35, 41 and 42

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Annulled the decision of the Opposition Division

Pleas in law: Infringement of Article 43 of Council Regulation 40/94 as the Board of Appeal erred in particular by ruling in the circumstances of this case that use of a trade mark as the title of a magazine may constitute use of that trade mark for services offered in that publication, and by failing to set out the proper evidential requirements needed to prove genuine use in such circumstances and/or by failing to give appropriate consideration to the evidence filed on the basis of the correct principles; Further, or in the alternative, infringement of Rule 22 of Commission Regulation No 2868/95 as the Board of Appeal failed to properly apply the provision of the said legal provision to the circumstances of the case, since it failed to provide guidance on the evidence required to establish proof of use and/or wrongly found that the evidence filed by the opponent was inadequate to establish use of the trade mark for the services relied upon.

Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).