Case T-441/05: Action brought on  16 December 2005  — IVG Immobilien AG v OHIM
Date: 2006-03-11
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), real estate business, trade-mark law

11.3.2006

EN

Official Journal of the European Union

C 60/41

Action brought on 5 December 2005 — Danjaq/OHIM

(Case T-435/05)

(2006/C 60/79)

Language in which the application was lodged: English

Parties

Applicant: Danjaq LLC (Santa Monica, USA) [represented by: L.
Berg, S. Skrein, Solicitors and G. Hobbs, G. Hollingworth,
Barristers]

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

Other party to the proceedings before the Board of Appeal: Mission
Productions GmbH (Munich, Germany)

Infringement of Article 8(1)(a) and (b) of Council Regulation
No 40/94 since there is a likelihood of confusion between the
conflicting trade marks as the conflicting marks and several of
the goods covered by these marks are identical.

Infringement of Articles 8(4) and 73 of Council Regulation No
40/94 and Rules 50(2) and 52(1) of Commission Regulation
No 2868/95 because the Board of Appeal failed to consider the
opposition under Article 8(4) of Council Regulation No 40/94
and should have recognised that
the
proprietor of numerous earlier rights and that it had used the
marks cited in the opposition in the course of trade.

the applicant was

Action brought on 16 December 2005 — IVG Immobilien
AG v OHIM

(Case T-441/05)

(2006/C 60/80)

Form of order sought

Language in which the application was lodged: German

— Annul the decision of the Board of Appeal in case number

R 1118/2004-1;

Parties

— allow the opponent's opposition to Community trade mark
application number 2 256 378, or alternatively remit the
opposition to the Office for Harmonisation in the Internal
Market for further consideration in accordance with the
judgment of the Court,

Applicant: IVG Immobilien AG (Bonn, Germany) (represented
by A. Okonek and U. Karpenstein, lawyers)

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

— award the opponent its costs of the proceedings.

Pleas in law and main arguments

Applicant
GmbH

for the Community trade mark: Mission Productions

Community trade mark concerned: The word mark ‘Dr. No’ for
goods in classes 9, 12, 18, 25 and 32 — application No
2 256 378

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

Mark or sign cited: The earlier well-known mark, earlier non-
registered mark and earlier sign used in the course of trade ‘Dr.
No’ and ‘Dr. NO’ for films, DVDs, comic books, music record-
ings, books, posters and action figures (toys)

Decision of the Opposition Division: Opposition rejected in its
entirety

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(2)(c) of Council Regu-
lation No 40/94 as the Board of Appeal misinterpreted Article
6 bis of the Paris Convention by holding that use within the
Community had to be proved by the applicant.

Form of order sought

The applicant claims that the Court should:

— annul the decision of the Fourth Board of Appeal of OHIM
of 1 September 2005 in Case R 559/2004-4 concerning
Community trade mark application No 2 927 788 and
order the defendant to register the ‘I’ mark for all goods and
services applied for;

— order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The figurative ‘I’ mark for
services in Classes 35, 36, 37, 39, 42 and 43 — Application
No 2 927 788

Decision of the Examiner: Dismissal of the application for all
services applied for

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) of Council Regu-
lation No 40/94, on the ground that the Board of Appeal over-
estimated the requirements for the distinctive character of
letters. In addition it is incorrect that the stylised graphic repre-
sentation of the large 'I'
in Königsblau is without evocative
force for the relevant public.