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Case T-36/09: Action brought on 23 January 2009 — dm-drogerie markt v OHIM — Distribuciones Mylar (dm)
ECLI:EU:UNKNOWN:62009TN0036
62009TN0036
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Valentina R., lawyer
4.4.2009
EN
Official Journal of the European Union
C 82/30
(Case T-36/09)
(2009/C 82/54)
Language in which the application was lodged: English
Parties
Applicant: dm-drogerie markt GmbH + Co. KG (Karlsruhe, Germany) (represented by: O. Bludovsky and C. Mellein, lawyers)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Other party to the proceedings before the Board of Appeal: Distribuciones Mylar, SA (Gelves, Spain)
Form of order sought
—Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 October 2008 in case R 228/2008-1 and, by way of correction, reject the opposition entirely;
—Alternatively, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 October 2008 in case R 228/2008-1 and remit the case to OHIM;
—Alternatively, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 October 2008 in case R 228/2008-1; and
—Order the other party to the proceedings before the Board of Appeal 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 ‘dm’, for goods in classes 1, 3-6, 8-11, 14, 16, 18, 20-22, 24-32, 34 and for services in class 40
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: Spanish trade mark registration No 2 561 742 of the figurative mark ‘DM’ for goods and services in classes 9 and 39
Decision of the Opposition Division: Partially allowed the opposition
Decision of the Board of Appeal: Dismissed the appeal
Pleas in law: Infringement of Articles 57 and 59 of Council Regulation 40/94 as the Board of Appeal erred in its finding that the letter of the defendant of 8 June 2007 did not suspend the appeal period; Infringement of Article 8(1)(b) of Council Regulation 40/94 as the Board of Appeal wrongly assessed that there was a likelihood of confusion between the trade marks concerned due to the similarity of the goods covered; Infringement of Rules 17(2) and (4) of Commission Regulation No 2868/95, as the Board of Appeal failed to find that the other party to the proceedings before the Board of Appeal failed to state the essential details of the opposition.
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).