Case T-385/08: Action brought on 15 September 2008 — Nadine Trautwein Rolf Trautwein v OHIM (Representation of a dog)
Date: 2008-09-15
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), leather industry, pet food, trade-mark law

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;

6.12.2008

EN

Official Journal of the European Union

C 313/37

— authorise the publication of the application for the registra-
tion of Community trade mark 4829321 in respect of those
goods as well and

— order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Representation of a horse for
goods in Classes 18, 25 and 31 — Application No 4 829 354

Pleas in law and main arguments

Decision of the Examiner: Rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal

Community trade mark concerned: Representation of a dog for
goods in Classes 18, 25 and 31 — Application No 4 829 321

Decision of the Examiner: Rejection of the application

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council
Regulation No 40/94 as the trade mark applied for is neither
directly nor exclusively descriptive, and has a sufficiently distinc-
tive character.

Decision of the Board of Appeal: Annulment of the contested deci-
sion as regards ‘clothing,
in
Class 25

footwear and headgear; belts’

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council
Regulatin No 40/94, as the mark applied for is neither directly
nor exclusively descriptive, and has a sufficiently distinctive
character.

Action brought on 22 September 2008 — Chocolade-
fabriken Lindt & Sprüngli v OHIM (Shape of a chocolate
rabbit)

(Case T-395/08)

(2008/C 313/68)

Language in which the application was lodged: German

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

Parties

(Case T-386/08)

(2008/C 313/67)

Applicant: Chocoladefabriken Lindt & Sprüngli AG (Kilchberg,
Switzerland) (represented by R. Lange, E. Schalast and G. Hild,
lawyers)

Language in which the application was lodged: German

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

Parties

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

(Leopoldshohe, Germany)

Form of order sought

— annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 18 July 2008 (Case No R 419/2008-4);

— order the defendant to pay the costs.

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

Pleas in law and main arguments

Form of order sought

— annul the Decision of the First Board of Appeal of

the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 7 July 2008 in Case R 1730/2007-1
together with the decision of the examiner of 25 September
2007 and

— to authorise the publication of the application for the regis-

tration of Community trade mark 4829354;

— order the defendant to pay the costs.

Community trade mark concerned: the three-dimensional mark in
the form of a chocolate rabbit for goods in Class 30 — Applica-
tion No 3 664 372

Decision of the Examiner: Rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The mark applied for is unusual, has the function of
indicating origin and has the necessary distinctive character.