EN

Official Journal of the European Union

C 129/19

(Case T -132/09)

2009/C 129/33

Language in which the application was lodged: German

Parties

Applicant: Epcos AG (Munich, Germany) (represented by: L. von Zumbusch, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Epco Sistemas, SL (Constanti, Spain)

Form of order sought

—Annul the decision of the Second Board of Appeal of 19 January 2009, R 1088/2008-2;

—annul Decision No B 979767 of the Opposition Division of 22 May 2008 on the opposition proceedings brought by the opposing party, in so far as the opposition was upheld in respect of the goods ‘NTC-Thermistoren’, ‘PTC-Thermistoren’ and ‘Sensoren’, and reject the opposition in its entirety;

—order the defendant and the opposing party to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: Figurative mark ‘EPCOS’ for goods in Classes 6 and 9 (application No 4 133 799)

Proprietor of the mark or sign cited in the opposition proceedings: Epco Sistemas, SL

Mark or sign cited in opposition: Spanish figurative mark ‘E epco SISTEMAS’ for goods in Class 9

Decision of the Opposition Division: Upholding in part of the opposition

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Breach of Article 8(1)(b) and Article 43(2) and (3) of Regulation (EC) No 40/94 and Rule 19(3) of Regulation (EC) No 2868/95, (1) since the opposition trade mark has not been used within the five years prior to publication of the trade mark applied for and there is no likelihood of confusion between the two opposing marks.

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).