# C_2008313EN.01003501.xml

| 6.12.2008 | EN | Official Journal of the European Union | C 313/35 |
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6.12.2008

EN

Official Journal of the European Union

C 313/35

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Action brought on 10 September 2008 — Aldi Einkauf v OHIM — Illinois Tools Works (TOP CRAFT)

(Case T-374/08)

(2008/C 313/63)

Language in which the application was lodged: German

Parties

Applicant: Aldi Einkauf GmbH & Co. OHG (Essen, Germany) (represented by: N. Lützenrath, U. Rademacher, L. Kolks and C. Fürsen, lawyers)

Applicant:

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

Defendant:

Other party to the proceedings before the Board of Appeal of OHIM: Illinois Tools Works, Inc. (Glenview, United States)

Other party to the proceedings before the Board of Appeal of OHIM:

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 25 June 2008 in Case No R 952/2007-2; |
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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 25 June 2008 in Case No R 952/2007-2;

| — | order the defendant to pay the costs. |
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order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Aldi Einkauf GmbH & Co. OHG

Applicant for a Community trade mark:

Community trade mark concerned: the figurative mark ‘TOP CRAFT’ for goods in Classes 1 and 3 (Application No 3 444 767)

Community trade mark concerned:

Proprietor of the mark or sign cited in the opposition proceedings: Illinois Tools Works, Inc.

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

Mark or sign cited in opposition: The national figurative marks ‘krafft’ for goods in Classes 1 and 3

Mark or sign cited in opposition:

Decision of the Opposition Division: Opposition upheld in part

Decision of the Opposition Division:

Decision of the Board of Appeal: Annulment of the Opposition Division's decision in so far as the opposition in respect of the goods ‘Chemicals used in agriculture, horticulture and forestry’ in Class 1 was upheld

Decision of the Board of Appeal:

Pleas in law: Infringement of Article 8(1)(b) and Article 43(2) and (3) of Council Regulation No 40/94 and of Rule 22(3) of Commission Regulation No 2868/95 because:

Pleas in law:

| — | the documents submitted by the opponent cannot prove use of the opposing marks, |
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the documents submitted by the opponent cannot prove use of the opposing marks,

| — | there are significant graphical differences between the marks at issue, |
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there are significant graphical differences between the marks at issue,

| — | the word element ‘TOP’ is not descriptive and of slight distinctive character, and |
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the word element ‘TOP’ is not descriptive and of slight distinctive character, and

| — | owing to the clear graphical differences and the additional word element ‘TOP’ in the mark applied for, a likelihood of confusion may be ruled out even if the goods are identical or similar. |
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owing to the clear graphical differences and the additional word element ‘TOP’ in the mark applied for, a likelihood of confusion may be ruled out even if the goods are identical or similar.

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