Case T-163/08: Action brought on 29 April 2008 — Arbeitsgemeinschaft Golden Toast v OHIM (Golden Toast)
Date: 2008-04-29
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), trade-mark law

5.7.2008

EN

Official Journal of the European Union

C 171/41

Form of order sought

Form of order sought

— Annul the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 14 February 2008 in case R 1527/2006-2;

— reject

the
No 3 663 234; and

application

for Community

trade mark

— order the other party to the proceedings before the Board of

Appeal to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The other party to the
proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark ‘GREEN by
missako’ for goods and services in classes 3, 25, 35 — applica-
tion No 3 663 234

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

Mark or sign cited: The Community figurative trade mark ‘MI SA
KO’ for goods in classes 18 and 25; the national figurative trade
mark ‘MI SA KO’ for services in class 35

Decision of the Opposition Division: Dismissal of the opposition

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94 as a mere global
likelihood of confusion
among consumers is required in order to deny a Community
trade mark application.

— Annul the decision of the First Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 31 January 2008 (Case R 761/2007-1);

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

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘Golden Toast’ for
goods and services in Classes 5, 8, 9, 11, 14, 16, 21, 24, 25,
28-32, 39 and 41-44 (Application No 4 811 171).

Decision of the Examiner: Application refused in part, in respect
of the goods in Classes 11 and 30.

Decision of the Board of Appeal: Dismissal of appeal.

Pleas in law: Breach of the obligation under the first sentence of
Article 73 of Regulation (EC) No 40/94 (1) to state reasons, in
that the appealed decision was based on lack of distinctive char-
acter within the meaning of Article 7(1)(b) of that regulation,
although that was not examined. In addition, infringement of
Article 7(1)(c) of Regulation No 40/94, in that the conditions
for the finding of descriptiveness of the trade mark applied for
were misconstrued.

(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 9 May 2008 — Microsoft v
Commission

(Case T-167/08)

(2008/C 171/80)

Language of the case: English

Action brought on 29 April 2008 — Arbeitsgemeinschaft
Golden Toast v OHIM (Golden Toast)

Parties

(Case T-163/08)

(2008/C 171/79)

Language of the case: German

Applicant: Microsoft Corp. (represented by: J.-F. Bellis, lawyer, I.
Forrester, QC

Defendant: Commission of the European Communities

Form of order sought

Parties

Applicant: Arbeitsgemeinschaft Golden Toast e.V.
(Düsseldorf,
Germany) (represented by: A. Späth and G. Hasselblatt, lawyers)

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

— annul

of

the

the Decision

European Commission
C(2008) 764 final of 27 February 2008 fixing the defi-
nitive amount of the periodic penalty payment imposed on
Microsoft
Decision
by
C(2005) 4420 final;

Commission

Corporation

— in the alternative, annul or reduce the amount of the peri-

odic penalty payment imposed;

— order the defendant to bear the costs.