Source: EURLEX
Language: en
Format: md

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| 4.4.2009 | EN | Official Journal of the European Union | C 82/30 |

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Action brought on 23 January 2009 — dm-drogerie markt v OHIM — Distribuciones Mylar (dm)

(Case T-36/09)

(2009/C 82/54)

Language in which the application was lodged: English

Parties

Applicant: dm-drogerie markt GmbH + Co. KG (Karlsruhe, Germany) (represented by: O. Bludovsky and C. Mellein, lawyers)

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

Other party to the proceedings before the Board of Appeal: Distribuciones Mylar, SA (Gelves, Spain)

Form of order sought

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| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 October 2008 in case R 228/2008-1 and, by way of correction, reject the opposition entirely; |

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| — | Alternatively, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 October 2008 in case R 228/2008-1 and remit the case to OHIM; |

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| — | Alternatively, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 October 2008 in case R 228/2008-1; and |

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| — | Order the other party to the proceedings before the Board of Appeal to pay the costs. |

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘dm’, for goods in classes 1, 3-6, 8-11, 14, 16, 18, 20-22, 24-32, 34 and for services in class 40

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

Mark or sign cited: Spanish trade mark registration No 2 561 742 of the figurative mark ‘DM’ for goods and services in classes 9 and 39

Decision of the Opposition Division: Partially allowed the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 57 and 59 of Council Regulation 40/94 as the Board of Appeal erred in its finding that the letter of the defendant of 8 June 2007 did not suspend the appeal period; Infringement of Article 8(1)(b) of Council Regulation 40/94 as the Board of Appeal wrongly assessed that there was a likelihood of confusion between the trade marks concerned due to the similarity of the goods covered; Infringement of Rules 17(2) and (4) of Commission Regulation No 2868/95[(1)](#ntr1-C_2009082EN.01003002-E0001), as the Board of Appeal failed to find that the other party to the proceedings before the Board of Appeal failed to state the essential details of the opposition.

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