Source: EURLEX
Language: en
Format: md

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| 2.8.2008 | EN | Official Journal of the European Union | C 197/32 |

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Action brought on 9 June 2008 — Paul Alfons Rehbein v OHIM — Hervé Dias Martinho and Manuel Dias Martinho (Outburst)

(Case T-214/08)

(2008/C 197/56)

Language in which the application was lodged: English

Parties

Applicant: Paul Alfons Rehbein (GmbH & Co.) KG (Glinde, Germany) (represented by: T. E. Lampel, lawyer)

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

Other parties to the proceedings before the Board of Appeal: Hervé Dias Martinho and Manuel Carlos Dias Martinho (Le Plessis Trévise, France)

Form of order sought

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| — | Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 13 March 2008 in case R 1261/2007-2; and |

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| — | order OHIM to pay the costs incurred by the applicant. |

Pleas in law and main arguments

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

Community trade mark concerned: The figurative mark ‘Outburst’ for goods in classes 16, 18 and 25 — application No 4 318 333

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

Mark or sign cited: The national word mark ‘Outburst’ for goods in class 25 — German trade mark registration No 399 40 713

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

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 43(2) and (3) of Council Regulation No 40/94 as the earlier national trade mark has been put to genuine use in connection with the goods and services in respect of which it is registered; infringement of Article 76(1)(f) of the said regulation as the Board of Appeal erred in not taking into account the affidavit of the applicant's managing director; infringement of Article 74(2) of the said regulation and of Rul 22(1) and (2) of Commission Regulation No 2868/95[(1)](#ntr1-C_2008197EN.01003202-E0001) as the further evidence submitted at the appeal's stage of the opposition proceedings is admissible and has to be taken into account when assessing the genuine use of the opposition mark; infringement of applicant's right to be heard as the Board of Appeal should have taken into account evidence of use submitted after the time limit.

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