Case T-152/08: Action brought on 21 April 2008 — Kido Industrial v OHIM — Amberes (SCORPIONEXO)
Date: 2008-04-21
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), cycle and motorcycle industry, sports equipment, trade-mark law

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

21.6.2008

EN

Official Journal of the European Union

C 158/21

Form of order sought

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

— Annulment in their entirety of the decision of the Board of
the

the decision of

Appeal No R 0287/2007-1 and of
Opposition Division No B 855 728 and

— Order that Amberes pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Kido Industrial Ltd.

Community trade mark concerned: Word mark ‘SCORPIONEXO’
(registration application No 3.886.249) for goods in Classes 9
and 28.

Proprietor of the mark or sign cited in the opposition proceedings:
Amberes, SA.

the design of

sign cited in opposition: Spanish figurative marks
Mark or
(No 339.142, No 499.599, No 499.600 and No 339.140) and
international figurative marks (No 206.346 and No 206.347)
composed of
scorpion and the word
‘ESCORPION’, for goods in Classes 6, 8, 12, 16, 20, 21 and 28;
and in Classes 22, 24, 25 and 26 respectively. Spanish word
mark ‘ESCORPION’ (No 555.764) for goods in Class 25. Com-
munity word mark ‘ESCORPION’ (No 778.217) for goods in
Classes 22, 24, 25 and 26.

a

the Opposition Division: The Opposition Division,
Decision of
founding its decision solely on the earlier Spanish figurative
mark No 339.142 allowed the opposition in respect of goods in
Classes 9 and 28, and refused entirely the application for regis-
tration in respect of those goods.

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

Pleas in law: Incorrect application of Article 8(1)(b) of Regulation
(EC) No 40/94 on the Community trade mark.

Other party to the proceedings before the Board of Appeal: Bosch
Security Systems BV (Eindhoven, Netherlands)

Form of order sought

— Annul

the decision of

the Third Board of Appeal of
the Office
Internal Market
(Trade Marks and Designs) of 11 February 2008 in case
R 1437/2006-3; and

for Harmonisation in the

— order OHIM to pay the costs, including those incurred in

the proceedings before the Board of Appeal.

Pleas in law and main arguments

Registered Community design subject of the application for a declara-
tion of
‘communications
equipment’ — registered Community design No 214903-0001

invalidity: A design for the product

Proprietor of the Community design: The applicant

Party requesting the declaration of invalidity of the Community design:
The other party to the proceedings before the Board of Appeal

Design produced as evidence by the party requesting the declaration of
invalidity: An earlier design made available to the public by
Koninklijke Philips Electronics NV registered as an international
design under No DM/055655

Decision of the Invalidity Division: Dismissal of the application for
a declaration of invalidity

Action brought on 25 April 2008 — Shenzhen Taiden
Industrial v OHIM — Bosch Security Systems (design of
communications equipment)

Decision of the Board of Appeal: Annulment of the decision of the
Invalidity Division and declaration that the contested design is
invalid

(Case T-153/08)

(2008/C 158/35)

Language in which the application was lodged: English

Parties

Applicant: Shenzhen Taiden Industrial Co., Ltd (Shenzhen, China)
(represented by: M. Hartmann, M. Helmer, lawyers)

Pleas in law: Infringement of Article 63(1) of Council Regulation
No 6/2002 as the Third Board of Appeal relied on alleged
facts presented by the party requesting the declaration of inva-
lidity for which no evidence was submitted;
infringement of
Articles 4(1) and 6(1) of Council Regulation No 6/2002 as the
Third Board of Appeal erred in holding that
the contested
design lacked individual character and failed to assess and
compare the designs at hand from the point of view of an
informed user.