Case T-347/08: Action brought on 20 August 2008 — iTouch International v OHIM — Touchnet Information Systems (iTouch)
Date: 2008-08-20
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), information, product designation, telecommunications

25.10.2008

EN

Official Journal of the European Union

C 272/43

Pleas in law and main arguments

the application for a
Registered Community trade mark subject of
declaration of invalidity: The word mark ‘BOTOLIST’ for goods in
class 3 — Community trade mark registration No 2 686 392

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

Other party to the proceedings before the Board of Appeal: Touchnet
Information Systems, Inc. (Lenexa, United States)

Proprietor of the Community trade mark: The applicant

Form of order sought

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

— Annul the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 28 May 2008 in case R 493/2007-2;

Trade mark right of the party requesting the declaration of invalidity:
Community trade mark registration No 2 015 832 of
the
figurative mark ‘BOTOX’ for goods in class 5; Community trade
mark registration No 2 575 371 of
the figurative mark
‘BOTOX’ for goods in class 5; Community trade mark registra-
tion No 1 923 986 of the figurative mark ‘BOTOX’ for goods in
class 5 and 16; Community trade mark registration No 1 999 481
of the word mark ‘BOTOX’ for goods in class 5; various registra-
tions of the trade mark ‘BOTOX’ in the Member States of the
European Communities.

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

— In the alternative, annul the decision of the Second Board of
Appeal of
the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) of 28 May 2008 in case
R 493/2007-2 to such extent as the court may deem fit;
and

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘iTouch’
services in classes 38 and 42

for

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

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

Pleas in law: Infringement of Article 8(5) of Council Regulation
No 40/94 as there is no proof that the earlier trade marks had
reputation in the relevant point in time, as the conflicting trade
marks are not sufficiently similar, as there is further no proof
that the use of the registered Community trade mark subject of
the application for a declaration of invalidity would be detri-
mental to the distinctiveness and reputation of the earlier trade
marks and that
the applicant acted
without due cause when adopting the registered Community
trade mark subject of the application for a declaration of inva-
lidity;
infringement of Article 73 of Council Regulation
No 40/94 as the contested decision does not state the reasons
on which it is based.

there is no proof

that

or

sign cited: Community

trade mark registration
Mark
No 1 449 503 of the word mark ‘TOUCHNET’ for goods and
services in classes 9, 37 and 42

Decision of the Opposition Division: Upheld the opposition 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 the Board of Appeal erred in its finding that
there exists a likelihood of confusion between the conflicting
trade marks.

Action brought on 20 August 2008 — iTouch International
v OHIM — Touchnet Information Systems (iTouch)

Action brought on 22 August 2008 — Papierfabrik
Hamburger-Spremberg v Commission

(Case T-347/08)

(2008/C 272/85)

Language in which the application was lodged: English

(Case T-350/08)

(2008/C 272/86)

Language of the case: German

Parties

Parties

Applicant: Papierfabrik Hamburger-Spremberg GmbH & Co. KG
(Spremberg, Germany) (represented by: S. Polster, lawyer)

Applicant:
(represented by: T. Alkin, Barrister)

iTouch International plc (London, United Kingdom)

Defendant: Commission of the European Communities