Case T-183/08: Action brought on 16 May 2008 — Schuhpark Fascies v OHIM — Leder & Schuh (jello SCHUHPARK)
Date: 2008-05-16
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), footwear industry, leather industry, office supplies, polishing and scouring preparations, toy industry, trade-mark law

5.7.2008

EN

Official Journal of the European Union

C 171/47

Pleas in law and main arguments

Pleas in law and main arguments

On 29 March 1996 the European Community, represented by
the Commission, entered into a contract BU 183/95 UK/AT
with Sidney C. Banks Plc and Jenbacher Energiesysteme AG for
the implementation of the project ‘Advanced automated gasifier
with CHP using waste wood as fuel’ under the Community
activities in the field of non-nuclear energy (1). Pursuant to the
contract provision, the Commission made an advance payment
of its contribution for the project to the designated contract
coordinator, Sydney C. Banks Plc.

By fax dated 25 September 1996, Sidney C. Banks Plc informed
it had decided to withdraw from the
the Commission that
project. On 17 April 1998 the European Community, repre-
sented by the Commission, entered into Addendum No 1 to the
contract by which Atlantic Energy Ltd replaced Sidney C. Banks
Plc as a party to, and coordinator under the contract.

Pursuant to clause 2 of the Addendum Sidney C. Banks Plc
transferred the advance payment received from the Commission
(plus interest) to Atlantic Energy Ltd in April 1998.

The Commission claims an order that Atlantic Energy Ltd repay
the advance payment plus interest on the grounds either that
the project never effectively commenced or, if it did, was termi-
nated by the Commission.

Applicant for a Community trade mark: Leder & Schuh AG.

Community trade mark concerned: The word and figurative mark
‘jello SCHUHPARK’ for goods in Classes 1, 3, 9, 14, 16, 18, 21,
24-26 and 28 (Application No 1 269 372).

Proprietor of the mark or sign cited in the opposition proceedings:
Schuhpark Fascies GmbH.

Mark or sign cited in opposition: The German word mark ‘Schuh-
park’ for goods in Class 25 (No 1 007 149), in respect of oppo-
sition to the registration for goods in Classes 18, 21, 25 and 26.

Decision of the Opposition Division: Opposition upheld in part
and application rejected in part.

Decision of the Board of Appeal: Annulment of the appealed deci-
sion and rejection of the opposition.

Pleas in law: Infringement of the second sentence of Article 43(2)
and Article 43(3) of Regulation (EC) No 40/94 (1) and breach of
the
second sentence of Rule 22(2) of Regulation (EC)
No 2868/95 (2) in that the applicant has sufficiently proved that
the opposition mark has been used in a manner which preserves
its rights.

(1) Council Decision 94/806/EC of 23 November 1994 adopting a
specific programme for research and technological development,
including demonstration, in the field of non-nuclear energy (1994 to
1998) (OJ L 334, 22.12.1994, p. 87).

(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 16 May 2008 — Schuhpark Fascies v
OHIM — Leder & Schuh (jello SCHUHPARK)

Action brought on 13 May 2008 — Rodd & Gunn
Australia v OHIM (Representation of a dog)

(Case T-183/08)

(2008/C 171/89)

(Case T-187/08)

(2008/C 171/90)

Language in which the application was lodged: German

Language in which the application was lodged: English

Parties

Applicant: Schuhpark Fascies GmbH (Warendorf, Germany)
(represented by: A. Peter and J. Braune, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM:
Leder & Schuh AG (Graz, Austria)

Parties

Applicant: Rodd & Gunn Australia Limited (Wellington, New
Zealand) (represented by: B. Brandreth, Barrister and N. Jenkins,
Solicitor)

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

Form of order sought

Form of order sought

— Annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market
(Trade
Marks and Designs) of 13 March 2008 in appeal proceed-
ings R 1560/2006-4;

— Order the defendant to pay the costs incurred by the appli-

cant.

— Annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 12 March 2008 in case R 1245/2007-4;

— order restitutio in integrum in respect of Community trade

mark No 339 218; and

— order OHIM to pay the costs.