18.5.2013

EN

Official Journal of the European Union

C 141/25

(Case T-172/13)

2013/C 141/45

Language in which the application was lodged: German

Parties

Applicant: Novomatic AG (Gumpoldskirchen, Austria) (represented by: W. Mosing, lawyer)

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

Other party to the proceedings before the Board of Appeal: Simba Toys GmbH & Co. KG (Fürth-Stadeln, Germany)

Form of order sought

The applicant claims that the General Court should:

—annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 January 2013 in Case 157/2012-4 and dismiss the opposition in its entirety as a result of a lack of similarity between the goods and/or signs and grant registration of the Community trade mark ‘AFRICAN SIMBA’ (application No 7 5 4175) in the form applied for;

—order OHIM and — in the case of written intervention — the opponent to bear their own costs and those incurred by the applicant in the proceedings before OHIM and in these proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: Word mark ‘ARFICAN SIMBA’ for goods and services in Classes 9, 28 and 41 — Community trade mark application No 7 534 175

Proprietor of the mark or sign cited in the opposition proceedings: Simba Toys GmbH & Co. KG

Mark or sign cited in opposition: National figurative mark containing the word element ‘Simba’, and international word mark ‘SIMBA’ for goods in Class 28

Decision of the Opposition Division: Opposition upheld in part

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 42(2) in conjunction with Article 42(3) of Regulation No 207/2009 in conjunction with Rule 22(2) of Regulation No 2868/95 and Article 8(1)(b) of Regulation No 207/2009