Case T-372/08: Action brought on 10 September 2008 — Murnauer Markenvertrieb v OHIM — Fitne Gesundheit und Wellness (Notfall Bonbons)
Date: 2008-09-10
Institutions: Court of First Instance
Subjects: EU trade mark, Switzerland, action for annulment (EU), confectionery product, trade-mark law

C 313/34

EN

Official Journal of the European Union

6.12.2008

Defendant: Commission of the European Communities (repre-
sented by: G. Berscheid and V. Joris, Agents, and D. Waelbroek,
lawyer)

concerning opposition proceedings between the Fédération fran-
çaise de tennis (FFT) and Mr Dimitrios Kaloudis.

Re:

First, annulment of the Commission decisions not to award the
applicant any priority points under the 2003 promotion proce-
dure; to reject his appeal to the Promotions Committee seeking
the award of priority points of any description; and to refuse to
award priority points for work in the interest of the institution
and, second, a claim for damages.

Operative part of the order

The Court:

1. Dismisses the action is as being in part manifestly lacking any

foundation in law and in part manifestly inadmissible.

2. Orders Mr Dimitrios Kaloudis to pay the costs.

Operative part of the order

(1) OJ C 283, 24.11.2007.

1. The action is dismissed as inadmissible.

2. Each party is ordered to bear its own costs.

(1) OJ C 82, 2.4.2005.

Action brought on 10 September 2008 — Murnauer
Markenvertrieb v OHIM — Fitne Gesundheit und Wellness
(Notfall Bonbons)

(Case T-372/08)

(2008/C 313/62)

Order of the Court of First Instance of 6 October 2008 —
Kaloudis v OHIM — Fédération française de tennis
(RolandGarros SPORTSWEAR)

Language in which the application was lodged: German

(Case T-380/07) (1)

Parties

for Community

(Community trade mark — Opposition proceedings — Appli-
cation
figurative mark RolandGarros
SPORTSWEAR — Previous national word mark Roland
Garros — Late payment of the appeal fees — Decision of the
Board of Appeal deeming the action to be unfounded)

(2008/C 313/61)

Language of the case: French

Parties

Applicant: Dimitrios Kaloudis (Dassia, Greece) (represented by:
G. Kaloudis, lawyer)

Defendant: Office for Harmonisation in the Internal Market
Folliard-
(Trade Marks
Monguiral, acting as Agent)

(represented by: A.

and Designs)

Applicant: Murnauer Markenvertrieb GmbH (Trebur, Germany)
(represented by: H. Daniel and O.I. Haleen, 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:
Fitne Gesundheits- und Wellness GmbH (Salzhemmendorf,
Germany)

Form of order sought

— Annul the decision of the Board of Appeal of OHIM of

10 July 2008 in Case R 909/2007-1;

— order the defendant to pay the costs.

Other party to the proceedings before the Board of Appeal of OHIM,
intervening before the Court of First Instance: Fédération française de
(represented by: F. Fajgenbaum,
tennis (FFT)
lawyer)

(Paris, France)

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of
invalidity has been sought: Word mark ‘Notfall Bonbons’ for goods
in classes 5 and 30 (Community trade mark No 3 563 251)

Re:

Proprietor of the Community trade mark: The applicant

Action brought against the decision of the Fourth Board of
Appeal of OHIM of 19 July 2007 (Case R 876/2006-4)

Applicant for the declaration of invalidity: Fitne Gesundheits- und
Wellness GmbH

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.