Case T-391/06: Action brought on 19 December 2006 — Karstadt Quelle v OHIM — dm drogerie markt (S-HE)
Date: 2007-02-24
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), retail trade, trade-mark law

24.2.2007

EN

Official Journal of the European Union

C 42/31

Action brought on 19 December 2006 — Karstadt Quelle v
OHIM — dm drogerie markt (S-HE)

Action brought on 20 December 2006 — Union Invest-
ment Privatfonds v OHIM — Unicre-Cartão International
De Crédito (unibanco)

(Case T-391/06)

(2007/C 42/53)

(Case T-392/06)

(2007/C 42/54)

Language in which the application was lodged: German

Language in which the application was lodged: German

Parties

Parties

Applicant: Karstadt Quelle Aktiengesellschaft (Essen, Germany)
(represented by: V. von Bomhard, A. Renck and T. Dolde,
lawyers)

Applicant: Union Investment Privatfonds GmbH (Frankfurt am
Main, Germany) (represented by: H. Keller, lawyer)

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

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

Other party to the proceedings before the Board of Appeal of OHIM:
dm drogerie markt GmbH

Other party to the proceedings before the Board of Appeal of OHIM:
Unicre-Cartão International De Crédito, S.A.

Form of order sought

— annul the decision of the First Board of Appeal of the Office
for Harmonisation in the Internal Market (Trade Marks and
Designs) No R 301/2006-1 of 26 September 2006;

— order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Form of order sought

The Court is asked to:

— annul the decision of the Board of Appeal of the Office for

Harmonisation in the Internal Market;

— allow the oppositions against registration of the word/figura-
the UniFLEXIO,

tive mark ‘Unibanco’ on the basis of
UniZERO and UniVARIO marks;

Applicant for a Community trade mark: dm drogerie markt GmbH.

— order the defendant to pay the costs of the proceedings.

Community trade mark concerned: The word mark ‘S-HE’ for goods
and services in Classes 3, 9, 14, 16, 18, 24, 25, 28, 32, 38, 41
and 42 (Application No 2 766 723).

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

Mark or sign cited in opposition: German word mark ‘SHE’ for
goods in Classes 3 and 25, German figurative mark ‘She’ for
goods in Classes 3, 9, 16, 18 and 25, and international figura-
tive mark ‘She’ for goods in Classes 3, 9, 16, 18 and 25.

Decision of the Opposition Division: Partial granting of the appeal,
partial rejection of the application.

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

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC)
No 40/94 (1), on the ground that there is a likelihood of confu-
sion between the marks in opposition.

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

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

Pleas in law and main arguments

Applicant for a Community trade mark: Unicre-Cartão International
De Crédito, S.A.

Community trade mark concerned: The figurative mark ‘unibanco’
for services in Classes 36 and 38 (application for registration
No 1 871 896).

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

Mark or
sign cited in opposition: German figurative marks
‘UniFLEXIO’ and ‘UniVARIO’ for services in Classes 35 and 36,
German figurative mark ‘UniZERO’ for services in Class 36.

Decision of the Opposition Division: Rejection of the opposition.

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

Pleas in law: Infringement of the applicant's procedural rights,
since no regard was had to the evidence put forward by the
applicant of the use of the marks with the ‘Uni’ element.