Case T-379/08: Action brought on 11 September 2008 — Mustang v OHIM
Date: 2008-09-11
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), motor vehicle industry, 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.

C 313/36

EN

Official Journal of the European Union

6.12.2008

Pleas in law and main arguments

Applicant for a Community trade mark: Mustang

to growers and undertakings having restructured in the
2006/07 and 2007/08 marketing years;

— an order that the Commission should pay the costs.

Community trade mark concerned: Representation of a wavy line
for goods and services in Classes 3, 18 and 25 (Application
No 4 081 352)

Proprietor of the mark or sign cited in the opposition proceedings:
Decathlon SA

Mark or sign cited in opposition: Existing national and interna-
tional figurative mark constituted by the representation of a
white wavy line on a black background, for goods in Classes 3,
18 and 25.

Pleas in law and main arguments

of Article

Infringement
(EC)
No 1261/2007 (2) and of Article 16a of Regulation (EC)
No 1264/2007 (3).

Regulation

1(1)(c)

of

Breach of the principles of equality, legal certainty and of the
non-retroactive effect of laws.

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Rejection of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94, because there are no aural, visual and concep-
tual similarities between the opposing marks that could give rise
to a likelihood of confusion.

(1) OJ 2008 L 156, p. 20.
(2) Council Regulation (EC) No 1261/2007 of 9 October 2007
amending Regulation (EC) No 320/2006 establishing a temporary
scheme for the restructuring of the sugar industry in the Com-
munity.

(3) Commission Regulation (EC) No 1264/2007 of 26 October 2007
amending Regulation (EC) No 968/2006 laying down detailed rules
for the implementation of Council Regulation (EC) No 320/2006
establishing a temporary scheme for the restructuring of the sugar
industry in the Community.

Action brought on 15 September 2008 — DAI v
Commission

Action brought on 15 September 2008 — Nadine
Trautwein Rolf Trautwein v OHIM (Representation of
a dog)

(Case T-381/08)

(2008/C 313/65)

Language of the case: Portuguese

(Case T-385/08)

(2008/C 313/66)

Language in which the application was lodged: German

Parties

Applicant: DAI — Sociedade de Desenvolvimento Agro-Indus-
trial, SA (Coruche, Portugal) (represented by: J. da Cruz Vilaça,
L. Romão and A. Mestre, lawyers)

Defendant: Commission of the European Communities

Form of order sought

Parties

Applicant: Nadine Trautwein Rolf Trautwein GbR, Research
(represented by C.
Development
Czychowski, A. Nordemann and A. Dustmann)

(Leopoldshöhe, Germany)

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

— A declaration that the action is admissible;

Form of order sought

— a decision allowing the action and annulment in part of
Commission Decision 2008/445/EC of 11 June 2008 fixing
the amounts per Member State of retroactive restructuring
aid for growers and undertakings having restructured in the
2006/07 and 2007/08 marketing years in the framework of
the temporary scheme for the restructuring of the sugar
the Community (notified under document
industry of
number C(2008) 2557) (1),
in so far as it refers to the
amount of restructuring aid allocated to Portugal to be paid

— annul Decision R 1734/2007-1 of the First Board of Appeal
of
the Office for Harmonisation in the Internal Market
(Trade marks and Designs) of 30 June 2008, together with
the decision of the examiner of 25 September 2007 to the
extent that protection was refused for the application for
Community trade mark 4829321 for goods ‘leather goods
included in Class 18; bags’ in Class 18 and ‘foodstuffs for
animals and drinks for domestic animals’ in Class 31;