Official Journal of the European Union

C 301/51

(Case T-400/08)

(2008/C 301/87)

Language in which the application was lodged: English

Parties

Applicant: Enercon GmbH (Aurich, Germany) (represented by: R. Böhm, lawyer)

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

Other party to the proceedings before the Board of Appeal: BP plc (London, United Kingdom)

Form of order sought

—Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 July 2008 in case R 957/2006-4, insofar as it dismisses the appeal lodged by the applicant against the decision of the Opposition Division of 26 May 2006 ruling on opposition number B 760 605; and

—Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘ENERCON’ for goods in classes 1, 2 and 4

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: Community trade mark registration No 137 828 of the word mark ‘ENERGOL’ for goods in classes 1 and 4

Decision of the Opposition Division: Upheld the opposition except for the goods that were found dissimilar

Decision of the Board of Appeal: Rejected the appeal for the goods that were found dissimilar and dismissed the appeal for the remainder

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 as the Board of Appeal erred in its finding that there is a likelihood of confusion between the conflicting trade marks.