CELEX: 62009TN0484
Language: en
Date: 2009-11-27 00:00:00
Title: Case T-484/09: Action brought on 27 November 2009 — McLoughney v OHIM — Kern (Powerball)

13.2.2010   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 37/40
            
         Action brought on 27 November 2009 — McLoughney v OHIM — Kern (Powerball)
   (Case T-484/09)
   2010/C 37/56
   Language in which the application was lodged: English
   
      Parties
   
   
      Applicant: Rory McLoughney (Thurles, Ireland) (represented by: J. M. Stratford-Lysandrides, Solicitor)
   
      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   
      Other party to the proceedings before the Board of Appeal: Ernst Kern (Zahling, Germany)
   
      Form of order sought
   
   
               —
            
            
               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 September 2009 in case R 1547/2006-4;
            
         
               —
            
            
               Allow the opposition to the Community trade mark application No 3 164 779; and
            
         
               —
            
            
               In the alternative, remit the opposition to the defendant for further consideration in accordance with the judgment of the Court.
            
         
      Pleas in law and main arguments
   
   
      Applicant for the Community trade mark: The other party to the proceedings before the Board of Appeal
   
      Community trade mark concerned: The word mark ‘Powerball’, for goods in classes 10, 25 and 28
   
      Proprietor of the mark or sign cited in the opposition proceedings: The applicant
   
      Mark or sign cited: Non-registered mark ‘POWERBALL’, used in the course of trade in Ireland and the United Kingdom
   
      Decision of the Opposition Division: Rejected the opposition in its entirety
   
      Decision of the Board of Appeal: Dismissed the appeal
   
      Pleas in law: Infringement of Articles 8(3) and 73 of Council Regulation No 40/94 (which became Articles 8(3) and 75, respectively, of Council Regulation No 207/2009) and Rules 50(2) and 52(1) of Commission Regulation No 2868/95 (1), as the Board of Appeal failed to consider the opposition under Article 8(3) of Council Regulation No 40/94 and should have recognised that the applicant had the requisite authority to oppose the Community trade mark concerned; infringement of Articles 8(4) and 73 of Council Regulation No 40/94 (which became Article 8(4) and 75, respectively, of Council Regulation No 207/2009) and Rules 50(2) and 52(1) of Commission Regulation No 2868/95, as the Board of Appeal failed to consider the opposition under Article 8(4) of Council Regulation No 40/94 and should have recognised that the applicant was the proprietor of the earlier rights and that it had used the mark cited in the opposition in the course of trade.
   
      (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).