Case T-473/08: Action brought on 28 October 2008 — Apollo Group v OHIM (THINKING AHEAD)
Date: 2008-10-28
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), trade-mark law

C 6/38

EN

Official Journal of the European Union

10.1.2009

the applicant submits that

Fifth,
the Commission infringed
Article 87(3)(a) and (c) EC by failing to recognize any role for
the applicant's PPA in securing the necessary investment in a
modern, upgraded plant.

Sixth, in the applicant's opinion, the Commission infringed its
duty to ensure legal specificity in respect of recovery, failed to
qualify the scope and value of the ‘purchase obligations’ and
based its recovery order on hypothetical elements.

Finally, the applicant claims that the Commission infringed the
fundamental principles of Community law in ordering recovery
of the alleged aid.

Action brought on 22 October 2008 — Companhia Muller
de Bebidas v OHIM — Missiato Industria e Comercio (61 A
NOSSA ALEGRIA)

(Case T-472/08)

(2009/C 6/75)

Community trade mark concerned: The figurative mark ‘61 A
NOSSA ALEGRIA’ for goods in class 33

Proprietor of the mark or sign cited in the opposition proceedings: The
applicant

Mark or sign cited: Portuguese trade mark registration No 273 105
of the figurative mark ‘CACHAÇA 51’ for goods in class 33;
Portuguese trade mark registration No 331 952 of the figurative
mark ‘CACHAÇA 51’ for goods in class 33; Benelux trade mark
registration No 576 901 of the figurative mark ‘CACHAÇA 51’
for goods in classes 32 and 33; Danish trade mark registration
No VR 1998 03649 of the figurative mark ‘CACHAÇA 51’ for
goods in class 33; United Kingdom trade mark registration
No 2 248 316 of the series of figurative marks ‘CACHAÇA 51’
for goods
in class 33; Spanish trade mark registration
No 2 354 943 of the figurative mark ‘CACHAÇA 51’ for goods
in class 33; German trade mark registration No 30 071 545 of
the figurative mark ‘CACHAÇA 51’; Austrian trade mark regis-
tration No 161 564 of the figurative mark ‘CACHAÇA 51’ for
goods in class 33; Portuguese well-known figurative trade mark
‘CACHAÇA 51’ for goods in class 33; Portuguese well-known
word trade mark ‘CACHAÇA 51’ for goods in class 33.

Decision of the Opposition Division: Rejected the opposition in its
entirety

Language in which the application was lodged: English

Decision of the Board of Appeal: Dismissed the appeal

Parties

Applicant: Companhia Muller de Bebidas (Pirassununga, Brazil)
(represented by: G. Da Cunha Ferreira and I. Bairrão, lawyers)

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

Other party to the proceedings before the Board of Appeal: Missiato
Industria e Comercio Lda (Santa Rita do Passa Quatro, Brazil)

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 is no likelihood of confusion between the conflicting trade
marks; Infringement of Article 52(1)(a) of Council Regulation
No 40/94 as the Board of Appeal erred in its finding that the
evidence submitted by the applicant was not sufficient to prove
the well known character of the earlier trade marks in Portugal,
or, at least its enhanced distinctiveness as a whole.

Form of order sought

Action brought on 28 October 2008 — Apollo Group v
OHIM (THINKING AHEAD)

— Annul the decision of the First Board of Appeal of the
(Trade
Office for Harmonisation in the Internal Market
Marks and Designs) of 4 July 2008 in case R 1687/2007-1,
inasmuch as it upheld the decision allowing the registration
of the Community trade mark concerned;

— Declare the registration of

the Community trade mark
concerned invalid for all goods protected, on the basis that
there is a likelihood of confusion with the trade marks cited
in the opposition proceedings; and

— Order the defendant and the other party to the proceeding

before the Board of Appeal to pay the costs.

Parties

(Case T-473/08)

(2009/C 6/76)

Language of the case: English

Pleas in law and main arguments

Applicant(s): Apollo Group, Inc. (Phoenix, United States) (repre-
sented by A. Jaeger-Lenz and A. Link, lawyers)

Applicant for the Community trade mark: The other party to the
proceedings before the Board of Appeal

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

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Official Journal of the European Union

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Form of order sought

— Annul the Decision of the Second Board of Appeal of the
(Trade
and Designs) of 14 August 2008 in case

Office for Harmonisation in the Internal Market
Marks
R 728/2008-2, and

Community trade mark concerned: The word mark ‘AVANZALENE’
for goods in class 5 — application No 4 632 501

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

— Order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘THINKING
AHEAD’ for goods and services in classes 9, 16 and 41

Decision of the examiner: Partial rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) of Council Regu-
lation No 40/94 as the Board of Appeal erred in its finding that
the trade mark concerned is devoid of any distinctive character.

or

Mark
No 3 331 444 of the word mark ‘AVANZ’ for goods in class 5

sign cited: Community

trade mark registration

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 is a likelihood of confusion between the trade marks
concerned.

Action brought on 3 November 2008 — Mundipharma v
OHIM — ALK-Abelló (AVANZALENE)

(Case T-477/08)

(2009/C 6/77)

Action brought on 10 November 2008 — adidas v OHIM
— Patrick Holding (Representation of a shoe with two
stripes)

(Case T-479/08)

(2009/C 6/78)

Language in which the application was lodged: English

Language in which the application was lodged: English

Parties

Parties

Applicant: Mundipharma AG (Basel, Switzerland)
by: F. Nielsen, lawyer)

(represented

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

Other party to the proceedings before the Board of Appeal: ALK-
Abelló A/S (Hørsholm, Denmark)

Form of order sought

— Revoke the decision of the Fourth Board of Appeal of the
(Trade
and Designs) of 28 August 2008 in case

Office for Harmonisation in the Internal Market
Marks
R 1694/2007-4; and

— Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Applicant: adidas AG (Herzogenaurach, Germany)
by: V. von Bomhard, A. Renck lawyers and I. Fowler, Solicitor)

(represented

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

Other party to the proceedings before the Board of Appeal: Patrick
Holding ApS (Fredensborg, Denmark)

Form of order sought

— Annul the decision of the Second Board of Appeal of the
(Trade
and Designs) of 27 August 2008 in case

Office for Harmonisation in the Internal Market
Marks
R 849/2007-2; and

— Order the defendant to bear the costs, or, in the event that
the other party to the proceedings before the Board of
Appeal intervenes on the side of the defendant, order both
parties to bear jointly the costs.