Case T-322/07: Action brought on 27 August 2007 — Kenitex Química v OHIM
Date: 2007-11-10
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, Portugal, action for annulment (EU), building technique, trade-mark law

10.11.2007

EN

Official Journal of the European Union

C 269/51

Pleas in law and main arguments

Other party to the proceedings before the Board of Appeal of the
Office: Chemicals International Establishment

Applicant for the Community trade mark: Applus Servicios Techno-
logicos, S.L. (formerly Agbar Automotive, S.L.)

Community trade mark concerned: The figurative trade mark ‘A+’
for goods and services in Classes 9, 35, 36, 37, 40, 41 and 42
— application No 2 933 356

Form of order sought

Proprietor of the mark or sign cited in the opposition proceedings:
Lufthansa AirPlus Servicekarten GbmH

Mark or sign cited: The Community word mark ‘Airplus Interna-
tional’ for goods and services in Classes 9, 35, 36 and 42

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 8(1) and 8(5) as well as
Articles 73, 74 and 79 of Council Regulation (EC) No 40/94.

The applicant claims that the Board failed to evaluate the criteria
of identity of goods and services as well as the similarity of the
marks and disregarded the reputation enjoyed by the earlier
mark. Moreover,
the Board has
the applicant submits that
breached its duty to state the reasons on which its decision was
based. Also, according to the applicant,
the Board did not
restrict itself to the examination of uncontested facts, evidence
and arguments put forward by the parties. Furthermore, the
applicant
rights of due process were
severely impaired by the Office's failure to inform the applicant
trademark's proprietor by
the
about
the Board
submitted that
is
another company. Finally,
exceeded its powers when taking into account the submissions
filed by the trademark proprietor, without justification, beyond
the time-limit set by the Office.

replacement of

contends

that

the

its

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Action brought on 27 August 2007 — Kenitex Química v
OHIM

(Case T-322/07)

(2007/C 269/92)

Language in which the application was lodged: Portuguese

Parties

Applicant: Kenitex Química, S.A.
(represented by: M. Pardete Reis, lawyer)

(Manique, Estoril

(Portugal))

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

— annulment of the decision of the Fourth Board of Appeal of
the Office of 19 June 2007, notified by fax to the applicant
on 25 June 2007 in the proceedings for invalidity No 879
Trade Mark Register
C 001553742/1
No 1553742), to which corresponds case No R 330/2006-4
and, in consequence, declare valid Community trade mark
No 1553742 ‘KENITEX TINTAS A QUALIDADE DA COR’,
applied for on 13 March 2000 and registered on 22 May
2001;

(Community

— order the defendant to pay the costs.

Pleas in law and main arguments

On 22 May 2001 the figurative Community trade mark
‘KENITEX TINTAS A QUALIDADE DA COR’ was registered for
goods in Classes 1, 2 and 19 of
the Nice Classification
(chemicals used in industry, artificial resins, paints, varnishes,
lacquers, mordants, natural resins, metals for painters; building
materials (non-metallic), asphalt paving, cladding, road safety
devices, glass (building)).

Chemicals International Establishment sought cancellation of
the Community mark on the basis that there existed in previous
registers graphic national marks ‘Kenitex’ for goods in Classes 2
(decorating paints) in Portugal, ‘Kenitex’ for goods in Classes 2
and 19 (cladding of various colours for buildings) in France and
‘Kenitex’ for goods in Classes 1, 2, 17 and 19 (non-inflammable
and waterproof goods, paints and cladding)
in the Benelux
countries.

The Cancellation Division upheld the application for a declara-
tion of invalidity and the Board of Appeal dismissed the appeal
brought by the applicant against that decision, considering that
there was some likelihood of confusion, given the similarity of
the goods and signs.

The applicant alleges contravention of Article 8(1)(b) of Council
Regulation No 40/94 (1), taking the view that there is no likeli-
hood of confusion between the two signs and the applicant's
sign corresponds to its business name (that of the company)
and name of the establishment registered in Portugal with the
National Institute of Industrial Property.

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

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