# C_2005031EN.01002202.xml

| 5.2.2005 | EN | Official Journal of the European Union | C 31/22 |
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5.2.2005

EN

Official Journal of the European Union

C 31/22

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Action brought on 8 September 2004 by Hensotherm AB against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-366/04)

(2005/C 31/45)

Language of the case: Swedish

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 8 September 2004 by Hensotherm AB, Trelleborg (Sweden), represented by Stefan Hallbäck, lawyer.

Rudolf Hensel GmbH, Börnsen (Germany), was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

| — | refer the case back to the Board of Appeal of the Office for Harmonisation for examination of the substance of the applicant's appeal against the decision of the Cancellation Division of 11 September 2003 on the ground of breach of essential procedural requirements; |
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refer the case back to the Board of Appeal of the Office for Harmonisation for examination of the substance of the applicant's appeal against the decision of the Cancellation Division of 11 September 2003 on the ground of breach of essential procedural requirements;

| — | in the alternative, examine the appeal against the Cancellation Division's decision of 11 September 2003 and the Board of Appeal's decision of 12 July 2004 and dismiss Rudolf Hensel GmbH's application for a declaration of invalidity of Community trade mark No 357 863; |
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in the alternative, examine the appeal against the Cancellation Division's decision of 11 September 2003 and the Board of Appeal's decision of 12 July 2004 and dismiss Rudolf Hensel GmbH's application for a declaration of invalidity of Community trade mark No 357 863;

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

Pleas in law and main arguments:

| Registered Community trade mark subject to an application for declaration of invalidity: | Figurative mark ‘HENSOTHERM’ for goods in Classes 2 and 17 (paints, insulation and sealing material) – Community trade mark No 357 863 |
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| Proprietor of Community trade mark: | The applicant |
| Party seeking a declaration of invalidity: | Rudolf Hensel GmbH |
| Trade mark held by the party seeking a declaration of invalidity: | National word mark ‘HENSOTHERM’ (No 213 672) for goods in Class 2 |
| Decision of the Cancellation Division: | Declaration of invalidity of Community trade mark 'HENSOTHERM' on the ground of the risk of confusion with the earlier national trade mark ‘HENSOTHERM’ (No 213 672) |
| Decision of the Board of Appeal: | Dismissal of the appeal |
| Pleas in law: | Breach of Articles 52(1)(a) and 78 of Regulation (EC) No 40/94 |

Registered Community trade mark subject to an application for declaration of invalidity:

Figurative mark ‘HENSOTHERM’ for goods in Classes 2 and 17 (paints, insulation and sealing material) – Community trade mark No 357 863

Proprietor of Community trade mark:

The applicant

Party seeking a declaration of invalidity:

Rudolf Hensel GmbH

Trade mark held by the party seeking a declaration of invalidity:

National word mark ‘HENSOTHERM’ (No 213 672) for goods in Class 2

Decision of the Cancellation Division:

Declaration of invalidity of Community trade mark 'HENSOTHERM' on the ground of the risk of confusion with the earlier national trade mark ‘HENSOTHERM’ (No 213 672)

Decision of the Board of Appeal:

Dismissal of the appeal

Pleas in law:

Breach of Articles 52(1)(a) and 78 of Regulation (EC) No 40/94

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