Source: EURLEX
Language: en
Format: md

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| 5.7.2008 | EN | Official Journal of the European Union | C 171/47 |

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Action brought on 16 May 2008 — Schuhpark Fascies v OHIM — Leder & Schuh (jello SCHUHPARK)

(Case T-183/08)

(2008/C 171/89)

Language in which the application was lodged: German

Parties

Applicant: Schuhpark Fascies GmbH (Warendorf, Germany) (represented by: A. Peter and J. Braune, 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: Leder & Schuh AG (Graz, Austria)

Form of order sought

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| — | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 13 March 2008 in appeal proceedings R 1560/2006-4; |

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| — | Order the defendant to pay the costs incurred by the applicant. |

Pleas in law and main arguments

Applicant for a Community trade mark: Leder & Schuh AG.

Community trade mark concerned: The word and figurative mark ‘jello SCHUHPARK’ for goods in Classes 1, 3, 9, 14, 16, 18, 21, 24-26 and 28 (Application No 1 269 372).

Proprietor of the mark or sign cited in the opposition proceedings: Schuhpark Fascies GmbH.

Mark or sign cited in opposition: The German word mark ‘Schuhpark’ for goods in Class 25 (No 1 007 149), in respect of opposition to the registration for goods in Classes 18, 21, 25 and 26.

Decision of the Opposition Division: Opposition upheld in part and application rejected in part.

Decision of the Board of Appeal: Annulment of the appealed decision and rejection of the opposition.

Pleas in law: Infringement of the second sentence of Article 43(2) and Article 43(3) of Regulation (EC) No 40/94[(1)](#ntr1-C_2008171EN.01004701-E0001) and breach of the second sentence of Rule 22(2) of Regulation (EC) No 2868/95[(2)](#ntr2-C_2008171EN.01004701-E0002) in that the applicant has sufficiently proved that the opposition mark has been used in a manner which preserves its rights.

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