Source: EURLEX
Language: en
Format: md

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| 6.12.2008 | EN | Official Journal of the European Union | C 313/35 |

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Action brought on 10 September 2008 — Aldi Einkauf v OHIM — Illinois Tools Works (TOP CRAFT)

(Case T-374/08)

(2008/C 313/63)

Language in which the application was lodged: German

Parties

Applicant: Aldi Einkauf GmbH & Co. OHG (Essen, Germany) (represented by: N. Lützenrath, U. Rademacher, L. Kolks and C. Fürsen, 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: Illinois Tools Works, Inc. (Glenview, United States)

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 25 June 2008 in Case No R 952/2007-2; |

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| — | order the defendant to pay the costs. |

Pleas in law and main arguments

Applicant for a Community trade mark: Aldi Einkauf GmbH & Co. OHG

Community trade mark concerned: the figurative mark ‘TOP CRAFT’ for goods in Classes 1 and 3 (Application No 3 444 767)

Proprietor of the mark or sign cited in the opposition proceedings: Illinois Tools Works, Inc.

Mark or sign cited in opposition: The national figurative marks ‘krafft’ for goods in Classes 1 and 3

Decision of the Opposition Division: Opposition upheld in part

Decision of the Board of Appeal: Annulment of the Opposition Division's decision in so far as the opposition in respect of the goods ‘Chemicals used in agriculture, horticulture and forestry’ in Class 1 was upheld

Pleas in law: Infringement of Article 8(1)(b) and Article 43(2) and (3) of Council Regulation No 40/94 and of Rule 22(3) of Commission Regulation No 2868/95 because:

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| — | the documents submitted by the opponent cannot prove use of the opposing marks, |

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| — | there are significant graphical differences between the marks at issue, |

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| — | the word element ‘TOP’ is not descriptive and of slight distinctive character, and |

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| — | owing to the clear graphical differences and the additional word element ‘TOP’ in the mark applied for, a likelihood of confusion may be ruled out even if the goods are identical or similar. |

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