12.1.2008

EN

Official Journal of the European Union

C 8/19

(Case T-402/07)

(2008/C 8/34)

Language of the case: English

Parties

Applicant: Kaul GmbH (Elmshorn, Germany) (represented by: G. Würtenberger and R. Kunze, lawyers)

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

Other party to the proceedings before the Board of Appeal: Bayer AG (Leverkusen, Germany)

Form of order sought

—The decision of the Second Board of Appeal of 1 August 2007 in Case R 782/2000-2, pertaining to the opposition based on Community trade mark registration No 49 106 ‘CAPOL’ against Community trade mark application No 195 370 ‘ARCOL’, be annulled;

—the opposition against Community trade mark application No 195 370 ‘ARCOL’, be granted;

—the defendant pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for the Community trade mark: Bayer AG

Community trade mark concerned: The Community word mark ‘ARCOL’ for goods in Classes 1, 17 and 20 — application No 195 370

Proprietor of the mark or sign cited in the opposition proceedings: Kaul GmbH

Mark or sign cited: The Community word mark ‘CAPOL’ for goods in classes 1

Decision of the Opposition Division: Rejected the opposition in its entirety

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Articles 8(1)(b), 63(6), 73, and 74 of Council Regulation (EC) No 40/94(‘the CTMR’).

According to the applicant, the Board of Appeal failed to take into account the obligations laid down in Articles 63(6) and 73 of the CTMR by disregarding the guidance provided by the Court of Justice in Case C-29/05 P and by refusing to exercise any discretion under Article 74(2) of the CTMR. Furthermore, the applicant contends that the Board failed to state reasons on which it based its decision.