Case T-308/08: Action brought on 5 August 2008 — Parfums Christian Dior v OHIM — Consolidated Artists (MANGO adorably)
Date: 2008-08-05
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), cosmetic product, trade-mark law

11.10.2008

EN

Official Journal of the European Union

C 260/15

Pleas in law and main arguments

Form of order sought

the application for a
Registered Community trade mark subject of
declaration of
invalidity: The figurative mark ‘Golden Elephant
Brand’ for goods in class 30 — Community trade mark registra-
tion No 241 810

— Annul the decision of the First Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 7 May 2008 in case R 1199/2007-1; and

— Order the defendant to pay the costs.

Proprietor of the Community trade mark: The applicant

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

Trade mark right of the party requesting the declaration of invalidity:
The unregistered figurative mark ‘GOLDEN ELEPHANT’, which
had been in use in the United Kingdom

Decision of the Cancellation Division: Rejection of the application
for a declaration of invalidity

Decision of the Board of Appeal: Annulment of the decision of the
Cancellation Division

Pleas in law: Infringement of Article 73 and 74(1) of Council
Regulation No 40/94 as the Board of Appeal erred by taking
into account alleged facts, as well as legal presumptions and
assumptions that had not been introduced or substantiated by
the parties, while at the same time it refused to take into
account other facts, evidence and arguments advanced by the
applicant;
infringement of Article 8(4) of Council Regulation
40/94 as the Board of Appeal erred in its finding that there was
a likelihood of relevant confusion between the trade marks
concerned and, as a result, a likelihood of damage.

Action brought on 7 August 2008 — Aldi Einkauf v OHIM
— Goya Importaciones y Distribuciones (4 OUT Living)

(Case T-307/08)

(2008/C 260/27)

Language in which the application was lodged: English

Parties

Applicant: Aldi Einkauf GmbH & Co. OHG (Essen, Germany)
(represented by: N. Lützenrath, U. Rademacher, L. Kolks, C.
Fürsen, lawyers)

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

Other party to the proceedings before the Board of Appeal: Goya
Importaciones y Distribuciones SL (Cuarte de Huerva, Spain)

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘4 OUT
Living’ for goods and services in classes 18, 25 and 28

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: Spanish trade mark registration No 2 604 969
of the figurative mark ‘Living & Co’ for goods and services in
classes 3, 14, 16, 18, 21, 25, 34 and 35

Decision of
partially

the Opposition Division: Upheld 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 the Board of Appeal erred in its finding that
there is a risk of confusion between the trade marks concerned.

Action brought on 5 August 2008 — Parfums Christian
Dior v OHIM — Consolidated Artists (MANGO adorably)

(Case T-308/08)

(2008/C 260/28)

Language in which the application was lodged: English

Parties

Applicant: Parfums Christian Dior SA (Paris, France) (represented
by: E. Cornu, D. Moreau and F. de Visscher, lawyers)

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

Other party to the proceedings before the Board of Appeal: Consoli-
dated Artists B.V. (Rotterdam, The Netherlands)

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 23 May 2008 in case R 1162/2007-2; and

— Order the defendant to pay the costs.

C 260/16

EN

Official Journal of the European Union

11.10.2008

Pleas in law and main arguments

Form of order sought

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

— Annul the decision of the First Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 14 April 2008 in case R 1232/2007-1;

Community trade mark concerned: The figurative mark ‘MANGO
adorably’ for goods in class 3

— Reject the registration of the Community trade mark appli-

cation No 4 195 368; and

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

Mark or sign cited: French trade mark registration No 33 209 849
of the word mark ‘ADIORABLE’ for goods in class 3; French
trade mark registration No 94 536 564 of the word mark
‘J'ADORE’ for various goods, amongst which goods in class 3;
international trade mark registration No 811 001 of the word
mark ‘ADIORABLE’ for various goods, amongst which goods in
class 3; international trade mark registration No 687 422 of the
word mark ‘J'ADORE’ for various goods, amongst which goods
in class 3

Decision of the Opposition Division: Rejection of the opposition in
its entirety

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Articles 8(1)(b) and 8(5) of Council
Regulation No 40/94 as the Board of Appeal erred in its finding
that there was no likelihood of confusion between the trade
marks concerned and that the use of the trade mark applied for
would not take unfair advantage of the reputation of earlier
trade marks, on the wrong reasoning that under both legal
grounds the trade marks concerned are not sufficiently similar.

Action brought on 4 August 2008 — G-Star Raw Denim v
OHIM — ESGW Holdings (G Stor)

(Case T-309/08)

(2008/C 260/29)

Language in which the application was lodged: English

Parties

— Order the defendant 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 ‘G Stor’ for
goods in class 9

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

Mark or sign cited: Benelux trade mark registration No 545 551
of the word mark ‘G-STAR’ for goods in class 25; Community
trade mark registration No 3 445 401 of the word/figurative
mark ‘G-STAR’ for goods in class 9 and 25; Community trade
mark registration No 3 444 262 of the word mark ‘G-Star’ for
goods in class 9 and 25; earlier well-known trade mark ‘G-Star’
protected in various countries for goods in class 25; Community
trade mark registration No 3 444 171 of the mark ‘G-STAR
RAW DENIM’ for goods in class 9 and 35; Dutch trade name
G-Star International B.V.

Decision of the Opposition Division: Allowed the opposition and
rejected the application in its entirety

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

Pleas in law: Infringement of Article 8(5) of Council Regulation
No 40/94 as the Board of Appeal applied the wrong criteria
when assessing the required similarity between the trade marks
concerned and the required detriment to the earlier trade marks.
In addition, the Board of Appeal also made an incorrect assess-
ment of the facts with regard to the abovementioned assess-
ments.

Action brought on 11 August 2008 — REWE-Zentral v
OHIM — Grupo Corporativo Teype (Solfrutta)

(Case T-331/08)

(2008/C 260/30)

Applicant: G-Star Raw Denim Kft. (Budapest, Hungary) (repre-
sented by: G. Vos, lawyer)

Language in which the application was lodged: English

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

Parties

Other party to the proceedings before the Board of Appeal: ESGW
Holdings Ltd (Tortola, British Virgin Islands)

Applicant: REWE-Zentral AG (Cologne, Germany) (represented
by: A. Bognár and M. Kinkeldey, lawyers)