Case T-88/06: Action brought on  17 March 2006  v Dorel Juvenile Group/OHIM
Date: 2006-05-06
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), trade-mark law

C 108/28

EN

Official Journal of the European Union

6.5.2006

Form of order sought

Form of order sought

— Annulment of the decision of the Fourth Board of Appeal
of the OHIM of 9 January 2006 regarding the appeal R
to opposition proceedings No
216/2003-4 relating
B216087
application No
1011626);

trade mark

(Community

— Order for all costs incurred in relation to all proceedings in
this matter (in particular, the costs of the action and the
appeal) to be awarded against the OHIM.

— Annul the decision of the Second Board of Appeal of 11

January 2006 (Case R 616/2004-2) and

— order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘SAFETY 1ST’
for goods in classes 12, 20, 21 and 28 — application No 2
258 697

Pleas in law and main arguments

Decision of the examiner: Refusal of the application

Applicant for the Community trade mark: The applicant

Decision of the Board of Appeal: Dismissal of the appeal

Community trade mark concerned: The word mark ‘FLEXI DESIGN’
for goods in class 3 — application No 1011626

Pleas in law: Infringement of Article 7(1)(b) of Council Regu-
lation No 40/94 as the trade mark applied for is not devoid of
any distinctive character in respect of the goods applied for.

Proprietor of the mark or sign cited in the opposition proceedings:
Revlon (Suisse) S.A.

Mark or sign cited: The national word mark ‘FLEX’ for goods in
classes 3 and 34

Decision of the Opposition Division: Opposition upheld for all the
contested goods

Action brought on 20 March 2006 — TOMORROW
FOCUS v OHIM

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Articles 15 and 43(2) of Council
Regulation No 40/94 as the evidence filed by Revlon (Suisse)
S.A. cannot be considered valid proof of genuine use of the
word mark ‘FLEX’ during the relevant period, neither in the UK
nor in France.

Infringement of Article 8(1)(b) of the Regulation as there is no
similarity between the conflicting trade marks and consequently
no risk of confusion.

Action brought on 17 March 2006 v Dorel

Juvenile

Group/OHIM

(Case T-88/06)

(2006/C 108/50)

Language of the case: English

Parties

Applicant: Dorel
sented by: Gesa Simon, lawyer]

Juvenile Group,

Inc.

(Canton, USA) [repre-

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

(Case T-90/06)

(2006/C 108/51)

Language in which the application was lodged: German

Parties

Applicant: TOMORROW FOCUS AG (Munich, Germany) (repre-
sented by: U. Gürtler, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM:
Information Builders (Netherlands) B.V.
(Amstelveen, Nether-
lands)

Form of order sought

— annul the decision of the First Board of Appeal of the
defendant of 17 January 2006 (Case R 116/2005-1) inas-
much as that decision rejects application No 002382455
for Community trade mark ‘Tomorrow Focus’;

— amend the decision of the First Board of Appeal of the
defendant of 17 January 2006 (Case R 116/2005-1) in such
a way that registration of application No 002382455 for
Community trade mark ‘Tomorrow Focus’ is also granted in
respect of the goods ‘computers and data processing appa-
ratus’ and the services ‘computer programming and design
of computer programs (computer software); maintenance
and on-line
and upgrading of
upgrading services’;

computer programs,

— order the defendant to pay the costs.