Case T-323/05: Action brought on 24 August 2005 — Coffee Store v OHIM
Date: 2005-11-12
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), beverage industry, trade-mark law

C 281/26

EN

Official Journal of the European Union

12.11.2005

Action brought on 18 August 2005 — Carsten Brinkmann
v OHIM

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas: There is no likelihood of confusion as between the
opposing marks.

(Case T-322/05)

(2005/C 281/48)

Language of the case: German

Parties

Applicant(s): Carsten Brinkmann (Cologne, Germany) (represen-
tative: K.Van Bebber, lawyer)

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

Action brought on 24 August 2005 — Coffee Store v
OHIM

(Case T-323/05)

(2005/C 281/49)

Language in which the application was lodged: German

Other party(ies) to the proceedings before the Board of Appeal: Terra
Networks SA (Madrid, Spain)

Parties

Forms of order sought by the claimant(s)

— annulment of Decision No 646/2004 of the Office for
Harmonisation of 29 October 2004 in the form of the deci-
the Board of Appeal of 10 June 2005 (R
sion of
together with an order for costs in its
1145/2004-1),
favour;

— dismissal of the opposition of Terra Networks SA of 12
April 2002 (Opposition proceedings B 502 676), together
with an order for costs in its favour, and

— registration of the word mark ‘Terranus’ (2 061 968), as
applied for on 29 January 2001, for goods and services in
Class 36 ‘Insurance; financial affairs; monetary affairs; real
estate affairs’.

Pleas in law and main arguments

Applicant for the Community trade mark: the claimant

Community trade mark affected: The word mark ‘Terranus’
respect of goods in Class 36 (Application No 1 739 697).

in

Owner of the opposing mark or sign in the opposition proceedings:
Terra Networks SA.

Opposing mark or sign: The figurative mark ‘TERRA’ for goods
and services in Class 36 (Community mark No 1 332 691),
and Spanish mark No 2 261 483).

Decision of the Opposition Division: Dismissal of the application.

Applicant(s): The Coffee Store GmbH (Mannheim, Germany)
(represented by: M. Buddeberg, lawyer)

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

Form of order sought

The applicant claims that the Court should:

— set aside the decision of the Second Board of Appeal of

OHIM of 15 June 2005, reference No R 855/2004-2;

— order that Community trade mark application 3 346 228

THE COFFEE STORE be registered;

— order OHIM to bear the costs of the proceedings.

Pleas in law and main arguments

Community trade mark sought: The word mark ‘THE COFFEE
STORE’ for goods and services in Classes 30, 32, 41 and 43.

the examiner: Refusal
Decision of
services in Classes 30, 32 and 43.

to register the goods and

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: The trade mark applied for cannot be considered
as a sign exclusively of descriptive character within the
meaning of Article 7(1)(c) of Council Regulation (EC) No
40/94. Furthermore, the trade mark applied for is not devoid
of any distinctive character within the meaning of Article
7(1)(b) of Council Regulation (EC) No 40/94.