CELEX: 62009TN0415
Language: en
Date: 2009-10-14 00:00:00
Title: Case T-415/09: Action brought on 14 October 2009 — New Yorker SHK Jeans v OHIM — Vallis K — Vallis A (FISHBONE)

5.12.2009   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 297/32
            
         Action brought on 14 October 2009 — New Yorker SHK Jeans v OHIM — Vallis K — Vallis A (FISHBONE)
   (Case T-415/09)
   2009/C 297/49
   Language in which the application was lodged: English
   
      Parties
   
   
      Applicant: New Yorker SHK Jeans GmbH (Braunschweig, Germany) (represented by: A. Gaul, T. Golda, S. Kirschstein-Freund and V. Spitz lawyers)
   
      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   
      Other party to the proceedings before the Board of Appeal: Vallis K — Vallis A & Co. OE (Athens, Greece)
   
      Form of order sought
   
   
               —
            
            
               Amend the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 July 2009 in case R 1051/2008-1 and rule that the appeal is justified and the opposition is rejected for goods in class 25;
            
         
               —
            
            
               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 July 2009 in case R 1051/2008-1 in so far as the appeal is dismissed and the rejection of the application for goods in class 25 is confirmed;
            
         
               —
            
            
               Order the defendant to pay the costs, including those incurred by the applicant before the Board of Appeal.
            
         
      Pleas in law and main arguments
   
   
      Applicant for the Community trade mark: The applicant
   
      Community trade mark concerned: The word mark “FISHBONE” for goods in classes 18 and 25
   
      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: Greek trade mark registration of the mark “FISHBONE BEACHWEAR” for goods in class 25; earlier sign “Fishbone” (word and device) used in the course of trade in Greece for “garments in general, footwear, and headgear”
   
      Decision of the Opposition Division: Upheld the opposition
   
      Decision of the Board of Appeal: Allowed the appeal in part and dismissed the appeal for the reminder
   
      Pleas in law: Infringement of Articles 43(2) and 74(2) of Council Regulation No 40/94 (which became Articles 42(2) and 76(2) of Council Regulation No 207/2009), as well as of Rule 22(2) of Commission Regulation No 2868/95 (1) as the Board of Appeal wrongly concluded that it was entitled to take into account the catalogues submitted on 15 January 2007; infringement of Article 73 of Council Regulation No 40/94 (which became Article 75 of Council Regulation No 207/2009) as the Board of Appeal did not state the reasons for taking into account the catalogues submitted on 15 January 2007; infringement of Articles 43(2) and (5), as well as 15(1) and (2)(a) of Council Regulation No 40/94 (which became Articles 42(2), (5) and 15(1), first and second subparagraph, point a of Council Regulation No 207/2009) as the Board of Appeal wrongly stated that the genuine use of the opposition mark was shown; infringement of Article 8(1)(b) of Council Regulation No 40/94 (which became Article 8(1)(b) of Council Regulation No 207/2009) as the Board of Appeal wrongly assumed that there was a likelihood of confusion between the trade marks concerned.
   
      (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).