# C_2008197EN.01003202.xml

| 2.8.2008 | EN | Official Journal of the European Union | C 197/32 |
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2.8.2008

EN

Official Journal of the European Union

C 197/32

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Action brought on 9 June 2008 — Paul Alfons Rehbein v OHIM — Hervé Dias Martinho and Manuel Dias Martinho (Outburst)

(Case T-214/08)

(2008/C 197/56)

Language in which the application was lodged: English

Parties

Applicant: Paul Alfons Rehbein (GmbH & Co.) KG (Glinde, Germany) (represented by: T. E. Lampel, lawyer)

Applicant:

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

Defendant:

Other parties to the proceedings before the Board of Appeal: Hervé Dias Martinho and Manuel Carlos Dias Martinho (Le Plessis Trévise, France)

Other parties to the proceedings before the Board of Appeal:

Form of order sought

| — | Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 13 March 2008 in case R 1261/2007-2; and |
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Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 13 March 2008 in case R 1261/2007-2; and

| — | order OHIM to pay the costs incurred by the applicant. |
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order OHIM to pay the costs incurred by the applicant.

Pleas in law and main arguments

Applicant for the Community trade mark: The other parties to the proceedings before the Board of Appeal

Applicant for the Community trade mark:

Community trade mark concerned: The figurative mark ‘Outburst’ for goods in classes 16, 18 and 25 — application No 4 318 333

Community trade mark concerned:

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

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

Mark or sign cited: The national word mark ‘Outburst’ for goods in class 25 — German trade mark registration No 399 40 713

Mark or sign cited:

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

Decision of the Opposition Division:

Decision of the Board of Appeal: Dismissal of the appeal

Decision of the Board of Appeal:

Pleas in law: Infringement of Article 43(2) and (3) of Council Regulation No 40/94 as the earlier national trade mark has been put to genuine use in connection with the goods and services in respect of which it is registered; infringement of Article 76(1)(f) of the said regulation as the Board of Appeal erred in not taking into account the affidavit of the applicant's managing director; infringement of Article 74(2) of the said regulation and of Rul 22(1) and (2) of Commission Regulation No 2868/95 (1) as the further evidence submitted at the appeal's stage of the opposition proceedings is admissible and has to be taken into account when assessing the genuine use of the opposition mark; infringement of applicant's right to be heard as the Board of Appeal should have taken into account evidence of use submitted after the time limit.

Pleas in law:

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(1)  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).

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