# C_2004201EN.01002002.xml

| 7.8.2004 | EN | Official Journal of the European Union | C 201/20 |
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7.8.2004

EN

Official Journal of the European Union

C 201/20

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Action brought on 27 May 2004 by MIP Metro Group Intellectual Property GmbH & Co. KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-191/04)

(2004/C 201/43)

Language of the case: English

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of First Instance of the European Communities on 27 May 2004 by MIP Metro Group Intellectual Property GmbH & Co. KG, Düsseldorf (Germany), represented by R. Kaase, lawyer.

Tesco Stores Limited was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

| — | annul the decision of the First Board of Appeal of the OHIM of 23 March 2004 in Case R 486/2003-1; |
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annul the decision of the First Board of Appeal of the OHIM of 23 March 2004 in Case R 486/2003-1;

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

Pleas in law and main arguments:

| Applicant for Community trade mark: | MIP METRO Group Intellectual Property GmbH & Co. KG |
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| Community trade mark sought: | The figurative mark ‘METRO’ in relation to goods which are not the issue in these proceedings (application No 779116) |
| Proprietor of mark or sign cited in the opposition proceedings: | Tesco Stores Limited |
| Mark or sign cited in opposition: | The national word mark ‘METRO’ |
| Decision of the Opposition Division: | Rejection of the opposition |
| Decision of the Board of Appeal: | Annulment of the decision of the Opposition Division |
| Pleas in law: | The applicant submits that the time an earlier right as basis for an opposition has to be in force and to be proved to have this status, should be the time of the decision by the Opposition Division, or, alternatively, when the time-limit to provide further evidence expires. In support of its application, the applicant invokes a violation of the parameters of the proceedings, enshrined in Article 74 of Council Regulation No 40/94 (1) and Rules 16 and 20 of Commission Regulation No 2868/95 (2). According to the applicant, Article 8 (1) (b) of Council Regulation 40/94 does not indicate that the validity of the earlier mark is only required at the time of filling an opposition. |

Applicant for Community trade mark:

MIP METRO Group Intellectual Property GmbH & Co. KG

Community trade mark sought:

The figurative mark ‘METRO’ in relation to goods which are not the issue in these proceedings (application No 779116)

Proprietor of mark or sign cited in the opposition proceedings:

Tesco Stores Limited

Mark or sign cited in opposition:

The national word mark ‘METRO’

Decision of the Opposition Division:

Rejection of the opposition

Decision of the Board of Appeal:

Annulment of the decision of the Opposition Division

Pleas in law:

The applicant submits that the time an earlier right as basis for an opposition has to be in force and to be proved to have this status, should be the time of the decision by the Opposition Division, or, alternatively, when the time-limit to provide further evidence expires. In support of its application, the applicant invokes a violation of the parameters of the proceedings, enshrined in Article 74 of Council Regulation No 40/94 (1) and Rules 16 and 20 of Commission Regulation No 2868/95 (2). According to the applicant, Article 8 (1) (b) of Council Regulation 40/94 does not indicate that the validity of the earlier mark is only required at the time of filling an opposition.

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(1)   Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 11, p. 1).

(2)  Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ L 303, p. 1).

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