Case T-146/08: Action brought on 17 April 2008 — Deutsche Rockwool Mineralwoll v OHIM — Redrock Construction (REDROCK)
Date: 2008-04-17
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), building, building materials, trade-mark law

21.6.2008

EN

Official Journal of the European Union

C 158/19

The applicant relies on nine pleas in law in support of
its
action. In the first six pleas the applicant attempts to state that
there is insufficient evidence of an infringement of the law. It is
submitted in particular that there was failure to have regard to
the full burden of proof which lies with the defendant, infringe-
ment of the inquisitorial principle, an erroneous assumption
that the seal was affixed properly, a false assumption that there
was something amiss with the condition of the seal on the
following day, a false assumption as to the suitability of the
security foil, and that there was failure on the defendant's part
to consider alternative scenarios.

With the seventh plea it is submitted that the presumption of
innocence was disregarded and thus essential rules as to proce-
dure and form were infringed.

the applicant submits that

the defendant erred in
Eighth,
making the accusation of fault for the purpose of Article 23 of
Regulation No 1/2003.

Lastly, it is submitted that there were infringements of the law
when the fine was calculated. According to the applicant there
was infringement of the principle prohibiting arbitrary measures
and of
laid down in
Article 253 EC. There was failure to have regard to mitigating
circumstances and an erroneous acceptance of aggravating
circumstances.

the obligation to state

reasons

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the
implementation of the rules on competition laid down in Articles 81
and 82 of the Treaty (OJ 2003 L 1, p. 1).

Action brought on 17 April 2008 — Atlas Transport v
OHIM — Atlas Air (ATLAS)

(Case T-145/08)

(2008/C 158/31)

Language in which the application was lodged: German

Parties

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) of 24 January 2008 (Case R 1023/2007-1);

— order the defendant to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of
invalidity has been sought: Word mark ‘ATLAS’ for goods and
services in classes 9, 36 and 39 (Community trade mark
No 2 970 788).

Proprietor of the Community trade mark: The applicant.

Applicant for the declaration of invalidity: Atlas Air, Inc.

Trade mark right of applicant for the declaration: In particular the
figurative mark ‘ATLASAiR’ registered in the Benelux States for
goods in class 39 (No 555 184).

Decision of
declared partially invalid for services in class 39.

the Cancellation Division: Community trade mark

Decision of the Board of Appeal: Applicant's appeal dismissed as
inadmissible.

Pleas in law: Infringement of the third sentence of Article 59 of
Regulation (EC) No 40/94 (1), as the grounds of the appeal were
linked to very specific assumptions and implicit grounds were
not regarded as being sufficient. Further, analogous infringement
of Article 61 of Regulation No 40/94 in conjunction with
Rule 20(7) of Regulation (EC) No 2868/95 (2), as the proceed-
ings before OHIM should necessarily have been suspended.

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

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

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

Action brought on 17 April 2008 — Deutsche Rockwool
v OHIM — Redrock
Construction
Mineralwoll
(REDROCK)

(Case T-146/08)

(2008/C 158/32)

Applicant: Atlas Transport GmbH (Düsseldorf, Germany) (repre-
sented by: U. Hildebrandt, K. Schmidt-Hern and B. Weichhaus,
Rechstanwälte)

Language in which the application was lodged: German

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

Parties

Other party to the proceedings before the Board of Appeal of OHIM:
Atlas Air, Inc. (New York, United States of America)

Applicant: Deutsche Rockwool Mineralwoll GmbH & Co. OHG
(Gladbeck,
Beckmann,
(represented
Rechstanwältin)

Germany)

by:

S.

C 158/20

EN

Official Journal of the European Union

21.6.2008

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

Other party to the proceedings before the Board of Appeal of OHIM:
Aldi Einkauf GmbH & Co. OHG (Essen, Germany)

Other party to the proceedings before the Board of Appeal of OHIM:
Redrock Construction s.r.o. (Prague, Czech Republic)

Form of order sought

The applicant claims that the Court should:

Form of order sought

— Annul the defendant's decision of 18 February 2008 in Case

R 506/2007-4;

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Redrock Construction s.r.o

Community trade mark concerned: Figurative mark ‘REDROCK’ for
goods and services in classes 1, 2, 17, 19, 36 and 37 (appli-
cation No 3 866 365).

— Annul

the decision of

the Fourth Board of Appeal of
the Office
Internal Market
(Trade Marks and Designs) of 15 February 2008 in
Case R 1484/2006-4;

for Harmonisation in the

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: the word mark ‘Clina’ for goods
in Classes 3 and 21 (Application No 3 921 079)

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

Proprietor of the mark or sign cited in the opposition proceedings: Aldi
Einkauf GmbH & Co. OHG

Mark or sign cited in opposition: German word mark ‘Rock’ for
goods and services in classes 1, 6-8, 17, 19, 37 and 42
(No 302 29 274); the opposition concerns registration in all
classes with the exception of class 36.

Mark or sign cited in opposition: the word mark ‘CLINAIR’ for
goods in Classes 3 and 5 (Community trade mark No 1 769 850)

Decision of the Opposition Division: Rejection of the opposition

Decision of the Opposition Division: Opposition allowed and appli-
cation refused in part.

Decision of the Board of Appeal: Annulment of the Opposition
Division's decision and rejection of the trade mark application

Decision of the Board of Appeal: Contested decision annulled and
opposition rejected.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC)
No 40/94 (1), as there is a likelihood of confusion, or at least a
likelihood of association, between the opposing marks.

Pleas in law:
Infringement of Article 8(1) of Regulation (EC)
No 40/94 (1) as there is no likelihood of confusion between the
opposing marks.

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

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

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

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

Action brought on 21 April 2008 — REWE-Zentral v
OHIM — Aldi Einkauf (Clina)

(Case T-150/08)

(2008/C 158/33)

Action brought on 21 April 2008 — Kido Industrial v
OHIM — Amberes (SCORPIONEXO)

(Case T-152/08)

(2008/C 158/34)

Language in which the application was lodged: Spanish

Language in which the application was lodged: German

Parties

Parties

Applicant: Kido Industrial Ltd (Seoul, Republic of Korea) (repre-
sented by: M. Mall, lawyer)

Applicant: REWE-Zentral AG (Cologne, Germany) (represented
by: M. Kinkeldey, 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:
Amberes, SA