Case T-479/08: Action brought on 10 November 2008 — adidas v OHIM — Patrick Holding (Representation of a shoe with two stripes)
Date: 2008-11-10
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), leather industry, textile industry, trade-mark law

10.1.2009

EN

Official Journal of the European Union

C 6/39

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.

C 6/40

EN

Official Journal of the European Union

10.1.2009

Pleas in law and main arguments

Action brought on 5 November 2008 — Alisei v
Commission

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

(Case T-481/08)

(2009/C 6/79)

Community trade mark concerned: The figurative mark representing
a shoe with two stripes, for goods in classes 18, 25 and 28.

Language of the case: Italian

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

Parties

Mark or sign cited: German trade mark registration No 39 950 559
of the figurative mark representing a shoe with three stripes for
goods in class 25; German trade mark registration No 944 623
of the figurative mark representing a shoe with three stripes for
goods in class 25; German trade mark registration No 944 624
of the figurative mark representing a shoe with three stripes for
goods in class 25; German trade mark registration No 897 134
of the figurative mark representing a shoe with three stripes for
goods in class 25; German designation of
the international
trade mark registration No 391 692 of the figurative mark
representing a shoe with three stripes for goods in class 25;
German designation of the international trade mark registration
No 414 034 of the figurative mark representing three stripes
for goods in class 25; German designation of the international
trade mark registration No 414 035 of the figurative mark
representing three stripes for goods in class 25; German desig-
nation of the international trade mark registration No 414 036
of the figurative mark representing three stripes for goods in
class 25; German designation of the international trade mark
registration No 414 037 of the figurative mark representing
three stripes for goods in class 25.

Decision of the Opposition Division: Upheld the opposition and
rejected the Community trade mark concerned in its entirety

Decision of the Board of Appeal: Annulled the decision of the
Opposition Division

Pleas in law: Infringement of Rules 16(3), 17(2) and 20(2) of
Commission Regulation No 2868/95 (1), thereby also infringing
Article 8(1)(b) of Council Regulation 40/94, as the Board of
Appeal erred in its finding that the applicant did not fulfil the
properly
translation
substantiate the validity, existence and scope of the earlier trade
marks invoked, in particular of German trade mark registration
No 39 950 559.

requirement

thereby

and

not

did

(1) Commission Regulation (EC) No 2868/95 of 13 December 1995
implementing Council Regulation (EC) No 40/94 on the Community
trade mark (OJ 1995 L 303, p. 1).

Applicant: Alisei NGO (Rome,
F. Sciaudone, R. Sciaudone, S. Gobbato, lawyers)

Italy)

(represented

by:

Defendant: Commission of the European Communities

Form of order sought

— Annulment of Commission Decision D (2007) 8449 of

19 August 2008;

— Order the Commission to compensate for the loss suffered;

— Order the Commission to pay the costs.

Pleas in law and main arguments

that

assistance,

the Commission's

challenges
the procedure

The applicant, a non-governmental organisation active in the
field of international cooperation for development and humani-
tarian
decision
confirming
initiated in June 2006,
concerning the accounting verification of a selection of
contracts concluded with the applicant, was in order. The
Commission had also provided the applicant with the final
report from Ernst & Young, informing it that that report was a
reliable technical basis for taking the necessary measures, in par-
ticular the launching of a recovery procedure for a total amount
of EUR 4 750 121.

The applicant puts forward the following arguments in support
of its action:

— infringement of the principle of sound administration and
diligence in administrative action, in that the applicant was
subjected to an administrative procedure the nature and
rules for implementation of which were quite specific, only
to discover subsequently that that procedure in reality had a
purpose and was conducted in a manner quite different
from what had been communicated to it. In particular, the
defendant decided, first of all, to initiate an accounting verifi-
cation procedure to be carried out through an audit, before
accepting the findings obtained through a different verifica-
tion procedure, a ‘amicable procedure’, of which the appli-
cant was never informed.