Case T-374/08: Action brought on 10 September 2008 — Aldi Einkauf v OHIM — Illinois Tools Works (TOP CRAFT)
Date: 2008-09-10
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), agri-foodstuffs, chemical product, horticulture, silviculture, trade-mark law

6.12.2008

EN

Official Journal of the European Union

C 313/35

Decision of the Cancellation Division: Rejection of the application
for a declaration of invalidity of the trade mark concerned.

Decision of the Board of Appeal: Annulment of the decision of the
Cancellation Division and granting of
the application for a
declaration of invalidity of the trade mark concerned.

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council
Regulation No 40/94, since the trade mark ‘Notfall Bonbons’ is
not descriptive of the protected goods, nor does it lack the
requisite distinctive character.

Action brought on 10 September 2008 — Aldi Einkauf v
OHIM — Illinois Tools Works (TOP CRAFT)

(Case T-374/08)

(2008/C 313/63)

Language in which the application was lodged: German

Parties

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

Decision of the Board of Appeal: Annulment of the Opposition
Division's decision in so far as the opposition in respect of the
goods ‘Chemicals used in agriculture, horticulture and forestry’
in Class 1 was upheld

Pleas in law: Infringement of Article 8(1)(b) and Article 43(2)
and (3) of Council Regulation No 40/94 and of Rule 22(3) of
Commission Regulation No 2868/95 because:

— the documents submitted by the opponent cannot prove use

of the opposing marks,

— there are significant graphical differences between the marks

at issue,

— the word element ‘TOP’
distinctive character, and

is not descriptive and of slight

— owing to the clear graphical differences and the additional
word element ‘TOP’ in the mark applied for, a likelihood of
confusion may be ruled out even if the goods are identical
or similar.

Action brought on 11 September 2008 — Mustang v
OHIM

(Case T-379/08)

(2008/C 313/64)

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

Language in which the application was lodged: German

Other party to the proceedings before the Board of Appeal of OHIM:
Illinois Tools Works, Inc. (Glenview, United States)

Parties

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 25 June 2008 in Case No R 952/2007-2;

— order the defendant to pay the costs.

Applicant: Mustang-Bekleidungswerke GmbH + Co. KG
(Künzelsau, Germany) (represented by: A. Klett and K. Weimer,
lawyers)

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

Pleas in law and main arguments

Other party to the proceedings before the Board of Appeal of OHIM:
Decathlon SA (Villeneuve d'Ascq, France)

Applicant for a Community trade mark: Aldi Einkauf GmbH &
Co. OHG

Community
the figurative mark ‘TOP
CRAFT’ for goods in Classes 1 and 3 (Application No 3 444 767)

trade mark concerned:

Form of order sought

Proprietor of the mark or sign cited in the opposition proceedings:
Illinois Tools Works, Inc.

Mark or sign cited in opposition: The national figurative marks
‘krafft’ for goods in Classes 1 and 3

Decision of the Opposition Division: Opposition upheld in part

— Annul the decision of the Fourth Board of Appeal of the
(Trade

Office for Harmonisation in the Internal Market
Marks and Designs) of 8 July 2008 in Case R 859/2007-4;

— order the defendant to pay the costs of these proceedings
and the proceedings before the Board of Appeal, including
the applicant's costs in both proceedings.