Case T-162/08: Action brought on 29 April 2008 — Frag Comercio Internacional v OHIM — Tinkerbell Modas (GREEN by missako)
Date: 2008-04-29
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), clothing industry, consultancy, cosmetics industry, trade-mark law

C 171/40

EN

Official Journal of the European Union

5.7.2008

Action brought on 28 April 2008 — Paroc v OHIM —
(INSULATE FOR LIFE)

Other party to the proceedings before the Board of Appeal: Bayer AG
(Leverkusen, Germany)

(Case T-157/08)

(2008/C 171/76)

Language in which the application was lodged: English

Parties

Applicant: Paroc Oy/AB (Vantaa, Finland)
Palm, lawyer)

(represented by:

J.

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

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 21 February 2008 in case R 0054/2008-2;
and

— order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘INSULATE FOR
LIFE’ for goods and services in classes 6, 17, 19 and 37 —
application No 593 2827

Decision of the examiner: Refusal of the application for all goods
and services

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) of Council Regu-
lation No 40/94 as the mark acquired the minimum degree of
distinctiveness required to be registered.

Action brought on 2 May 2008 — Procter & Gamble v
OHIM — Bayer (LIVENSA)

(Case T-159/08)

(2008/C 171/77)

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 11 February 2008 in case R 960/2007-2;

— reject the opposition No B 873 978 dated 3 May 2007;

— order OHIM to bear the costs of the proceedings: and

— order the other party to the proceedings before the Board of
Appeal to bear the costs of the proceedings before OHIM.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘LIVENSA’ for
goods in class 5 — application No 004 062 725

Proprietor of the mark or sign cited in the opposition proceedings: The
other party to the proceedings before the Board of Appeal

Mark or sign cited: The Community trade mark ‘LYVELSA’ for
goods in class 5

Decision of the Opposition Division: Rejection of the trade mark
application in its entirety

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 there is no likelihood of confusion between
the two trade marks subject to comparison.

Action brought on 29 April 2008 — Frag Comercio
Internacional v OHIM — Tinkerbell Modas (GREEN by
missako)

(Case T-162/08)

(2008/C 171/78)

Language in which the application was lodged: English

Language in which the application was lodged: English

Parties

Parties

Applicant: Frag Comercio Internacional, SL (Esparraguera, Spain)
(represented by: E. Sugrañes, lawyer)

Applicant: The Procter & Gamble Company (Cincinnati, United
States) (represented by: K. Sandberg, 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: Tinkerbell
Modas, Ltda (São Paulo, Brazil)

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.