Case T-90/06: Action brought on  20 March 2006  — TOMORROW FOCUS v 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.

6.5.2006

EN

Official Journal of the European Union

C 108/29

Pleas in law and main arguments

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Applicant for a Community trade mark: Tsakiris-Mallas A.E.

the word mark ‘Tomorrow
Community trade mark concerned:
Focus’ for goods and services in Classes 9, 16, 35, 38, 41 and
42 (application No 2382455)

Proprietor of the mark or sign cited in the opposition proceedings:
Information Builders (Netherlands) B.V.

Mark or sign cited in opposition: the figurative mark ‘Focus’ for
goods and services in Classes 9, 16 and 42 (Community trade
mark No 68585)

Decision of the Opposition Division: grant of the opposition and
rejection of the application in respect of classes 9 and 42

Decision of the Board of Appeal: annulment of the contested deci-
sion, rejection of the application for certain goods and services
in Classes 9 and 42 and rejection of the remainder of the oppo-
sition

Pleas in law: infringement of Article 8(1)(b) of Regulation (EC)
No 40/94 (1) on the ground that it was incorrectly held that
there was a likelihood of confusion between the trade marks
compared.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).

Community trade mark concerned: figurative mark exë for goods
in Classes 18 and 25 — Application No 2 190 015

Proprietor of the mark or sign cited in the opposition proceedings:
Late Editions Limited

Mark or sign cited in opposition: National mark EXE for goods in
Class 25

Decision of
some of the goods

the Opposition Division: Opposition accepted for

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94

Order of the Court of First Instance (Third Chamber of 15
March 2006 — Aries Meca v Commission

(Case T -275/04) (1)

(2006/C 108/53)

Language of the case: French

The President of the Third Chamber has ordered that the case
be removed from the register.

Action brought on 17 March 2006 — Tsakiris-Mallas A.E.
v OHIM

(1) OJ C 262, 23.10.2004.

(Case T -96/06)

(2006/C 108/52)

Language in which the application was lodged: Greek

Parties

Applicant: Tsakiris-Mallas A.E.
(represented by: Kharalambos Samaras, lawyer)

(Aryiroupoli, Attica, Greece)

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

Other party to the proceedings before the Board of Appeal of OHIM:
Late Editions Limited (Leighton Buzzard, United Kingdom)

Form of order sought

Order of the Court of First Instance of 10 March 2006 —
Success-Marketing v OHIM

(Case T -506/04) (1)

(2006/C 108/54)

Language of the case: German

The President of the Fifth Chamber has ordered that the case be
removed from the register.

— Annulment of the decision of the Second Board of Appeal

of 11 January 2006 in Case R 1127/2004-2.

(1) OJ C 193 6.8.2005.