Case T-72/08: Action brought on 11 February 2008 — Travel Servis v OHIM — Eurowings Luftverkehrs (smartWings)
Date: 2008-02-11
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), air transport, service, trade-mark law

C 107/32

EN

Official Journal of the European Union

26.4.2008

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The Community word mark
‘ETRAX’ for goods and services in classes 9 and 42 — Applica-
tion No 3 890 291

Proprietor of the mark or sign cited in the opposition proceedings: Etra
Investigacion y Desarollo SA

Mark or sign cited: The national figurative marks containing the
word element ‘ETRA’ and the letters ‘I’ and ‘D’ joined by the sign
‘+’ for goods and services in classes 9 and 42

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Upheld the appeal and annulled
the contested decision

Pleas in law: Infringement of Rule 49 of Commission Regulation
(EC) No 2868/95 (1) (‘CTMIR’) and Article 8(1)(b) of Council
Regulation (EC) No 40/94 (‘CTMR’).

The applicant claims that the Board of Appeal erred in finding
that the appeal was filed in accordance with Rule 49(1) CTMIR
which states that the Board of Appeal must reject an appeal as
inadmissible if it doesn't comply with Articles 57, 58 and 59
CTMR and Rule 48(1)(c) CTMIR. Further, the applicant contends
that since the language deficiency was not remedied by the
opponent before the expiry of the time-limit set to lodge an
appeal, namely, 12 February 2007, the Board of Appeal alleg-
edly infringed Rule 49(1) and (2) CTMIR.

(1) Commission Regulation (EC) No 2868/95 of 13 December 1995
implementing Council Regulation (EC) No 40/94 on the Community
trade mark (OJ L 303, p. 1).

Action brought on 11 February 2008 — Travel Servis v
OHIM — Eurowings Luftverkehrs (smartWings)

(Case T-72/08)

(2008/C 107/53)

Language in which the application was lodged: English

Parties

Applicant: Travel Service a.s.
sented by: S. Hejdová)

(Prague, Czech Republic)

(repre-

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

Other party to the proceedings before the Board of Appeal: Eurowings
Luftverkehrs AG (Dortmund, Germany)

Form of order sought

— Alter the contested decision of the Second Board of Appeal

in Case R 1515/2006-2 as follows:

— annul the Opposition Division decision relating to oppo-
sition proceedings No B 782 351 of 29 September
2006 in its entirety;

— order the opponent to bear the costs incurred by the
applicant with respect to the opposition and the appeal
proceedings before the OHIM.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative Community trade
mark ‘smartWings’ for goods and services in classes 16, 21, 37,
39, 41 and 43 — Application No 3 650 595

Proprietor of the mark or sign cited in the opposition proceedings:
Eurowings Luftverkehrs AG

Mark or sign cited: The national and international word mark
‘EuroWings’ for goods and services in classes 16 and 41, the
national and international word mark ‘EUROWINGS’ for goods
and services in classes 39 and 42 and the national word mark
‘WINGSGLASS’ for goods and services in classes 16, 39, 41
and 42

Decision of the Opposition Division: Upheld the opposition in part

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation (EC) No 40/94 and of essential procedural requirements
enshrined in Articles 73 and 79 CTMR.