12.1.2008

Official Journal of the European Union

C 8/26

(Case T-416/07)

(2008/C 8/46)

Language of the case: English

Parties

Applicant: RedEnvelope Inc. (San Francisco, United States) (represented by: A. Poulter, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Red Letter Days Ltd (London, United Kingdom)

Form of order sought

—Annul the decision of the First Board of Appeal dated 14 September 2007, No R 765/2005-1, in so far as the decision provided for the admission of new evidence in support of the grounds of opposition;

—order that the defendant pays the applicant's costs of this appeal.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘REDENVELOPE’ for services in classes 35 and 42 — application No 1 601 392

Proprietor of the mark or sign cited in the opposition proceedings: Red Letter Days Ltd

Mark or sign cited: The registered and non-registered national word and figurative marks ‘RED LETTER’, ‘RED LETTER DAYS’ and ‘RED LETTER DAYS PLC’ for goods and services in classes 9, 14, 16, 18, 21, 22, 25, 26, 33, 36, 39, 41, 42, 43 and 44

Decision of the Opposition Division: Opposition partially upheld

Decision of the Board of Appeal: Annulment of the Opposition Division's decision and remittal of the case to the Opposition Division for further consideration in so far as it regards Article 8(4) of Council Regulation No 40/94

Pleas in law: Violation of Article 74(2) of Council Regulation No 40/94, as the Board of Appeal admitted new evidence, which will allow the Opposition Division to make a decision based on evidence, which was not available earlier in the proceedings and to which the applicant has not had an opportunity to respond before the Opposition Division.