10.9.2011

EN

Official Journal of the European Union

C 269/57

(Case T-390/11)

2011/C 269/124

Language in which the application was lodged: German

Parties

Applicant: Evonik Industries AG (Essen, Germany) (represented by: J. Albrecht, lawyer)

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

Other party to the proceedings before the Board of Appeal: Johann Heinrich Bornemann GmbH — Geschäftsbereich Kunststofftechnik Obernkirchen (Obernkirchen, Germany)

Form of order sought

The applicant claims that the Court should:

—annul the defendant's decision (of the Second Board of Appeal) of 19 April 2011 (Case R 1802/2010-2) in so far as it denies international mark No 918 426‘EVONIK’ protection within the European Union;

—order the defendant 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: Word mark ‘EVONIK’ for goods and services in Classes 1, 2, 3, 4, 5, 6, 7, 9, 11, 16, 17, 19, 35, 37, 39, 40, 41 and 42 — International registration number 918 426.

Proprietor of the mark or sign cited in the opposition proceedings: Johann Heinrich Bornemann GmbH — Geschäftsbereich Kunststofftechnik Obernkirchen.

Mark or sign cited in opposition: Community word mark ‘EVO’ for goods and services in Classes 7, 37 and 42.

Decision of the Opposition Division: Opposition partially upheld.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 8(1)(b) and Articles 75 and 76 of Regulation No 207/2009 since, (i) there is no likelihood of confusion between the opposing marks, (ii) the Board of Appeal based its decision on grounds on which the applicant could not voice its opinion, and (iii) the Board of Appeal based its decision on arguments which were not raised by the opponent in the proceedings.