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Case T-183/08: Action brought on 16 May 2008 — Schuhpark Fascies v OHIM — Leder & Schuh (jello SCHUHPARK)
ECLI:EU:UNKNOWN:62008TN0183
62008TN0183
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Valentina R., lawyer
5.7.2008
EN
Official Journal of the European Union
C 171/47
(Case T-183/08)
(2008/C 171/89)
Language in which the application was lodged: German
Parties
Applicant: Schuhpark Fascies GmbH (Warendorf, Germany) (represented by: A. Peter and J. Braune, 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: Leder & Schuh AG (Graz, Austria)
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 13 March 2008 in appeal proceedings R 1560/2006-4;
—Order the defendant to pay the costs incurred by the applicant.
Pleas in law and main arguments
Applicant for a Community trade mark: Leder & Schuh AG.
Community trade mark concerned: The word and figurative mark ‘jello SCHUHPARK’ for goods in Classes 1, 3, 9, 14, 16, 18, 21, 24-26 and 28 (Application No 1 269 372).
Proprietor of the mark or sign cited in the opposition proceedings: Schuhpark Fascies GmbH.
Mark or sign cited in opposition: The German word mark ‘Schuhpark’ for goods in Class 25 (No 1 007 149), in respect of opposition to the registration for goods in Classes 18, 21, 25 and 26.
Decision of the Opposition Division: Opposition upheld in part and application rejected in part.
Decision of the Board of Appeal: Annulment of the appealed decision and rejection of the opposition.
Pleas in law: Infringement of the second sentence of Article 43(2) and Article 43(3) of Regulation (EC) No 40/94 (1) and breach of the second sentence of Rule 22(2) of Regulation (EC) No 2868/95 (2) in that the applicant has sufficiently proved that the opposition mark has been used in a manner which preserves its rights.
Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).
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).