CELEX: C2003/044/65
Language: en
Date: 2003-02-22 00:00:00
Title: Case T-363/02: Action brought on 5 December 2002 by Muswellbrook Limited against the Office for Harmonisation in the Internal Market (OHIM)

C 44/34               EN                          Official Journal of the European Union                                         22.2.2003
Pleas in law and main arguments                                                 First Board of Appeal of the OHIM of 30 September
                                                                                2002 in case No R 19/2000-1, inasmuch as it declares
Applicant for Com-            NIKE INTERNATIONAL Ltd.                           that the opponent has failed to prove genuine use in the
munity trade mark:                                                              Community of the Spanish trade mark No 88222 to
                                                                                distinguish ready-to-wear and other items of clothing in
Community trade mark          The word mark ‘NIKE’ — appli-                     Class 25 during the five years preceding the publication
sought by the appli-          cation No 278028 for goods in                     of the application for a Community trade mark;
cation:                       Class 25 ‘clothing, footwear,
                              headgear’.                                  —     annul that decision in its entirety;
Proprietor of mark or         The applicant.                              —     agree to vary that decision so as to declare that an
sign right asserted in the                                                      assessment of and a ruling on the merits of the opposition
opposition proceedings:                                                         to registration of Community trade mark No 278093 is
                                                                                appropriate, to which end the Court’s judgment should
Mark or sign right assert-    The Spanish mixed trade mark
                                                                                declare that Community trade mark No 278093 is
ed in opposition:             No 88222, composed of the word                    refused, or, in the alternative, refer the case back to the
                              ‘NIKE’ together with the image of                 First Board of Appeal of the OHIM;
                              the Greek goddess of victory of
                              Samothrace, for products in
                              Class 25.                                   —     order the defendant and, where appropriate, the inter-
                                                                                vener to pay all the costs of the proceedings and those
Decision of Opposition        Refusal of application.                           incurred at the administrative stages of the opposition
Division:                                                                       and appeal proceedings.
Decision of Board of          Annulment of the decision of the
Appeal:                       Opposition Division and rejection
                              of the opposition.                          Pleas in law and main arguments
Pleas in law:                 Improper or erroneous appli-
                              cation of Article 15(2)(a) and              The applicant seeking the Community trade mark, the pro-
                              Article 43(2) and (3) and of other
                                                                          prietor of the mark cited in opposition, the tenor of the
                              relevant provisions of Regulation
                                                                          decisions of the Opposition Division and the Board of Appeal
                              No 40/94 on the Community
                                                                          and the pleas in law and main arguments are the same as those
                              trade mark.
                                                                          in Case T-362/02 (MUSWELLBROOK LIMITED v OHIM).
                                                                          The Community trade mark in respect of which registration is
                                                                          sought is the word mark ‘NIKE TOWN’ — application
                                                                          No 278093 in respect of goods in Class 25 ‘clothing, footwear
                                                                          and headgear’.
Action brought on 5 December 2002 by Muswellbrook
Limited against the Office for Harmonisation in the
                    Internal Market (OHIM)
                        (Case T-363/02)
                         (2003/C 44/65)
                                                                          Action brought on 5 December 2002 by Muswellbrook
                  (Language of the case: Spanish)                         Limited against the Office for Harmonisation in the
                                                                                               Internal Market (OHIM)
An action against the Office for Harmonisation in the Internal                                     (Case T-364/02)
Market (OHIM) was brought before the Court of First Instance
of the European Communities on 5 December 2002 by
Muswellbrook Limited, established in Dublin (Ireland), rep-                                         (2003/C 44/66)
resented by J. Casulá Oliver, lawyer.
                                                                                             (Language of the case: Spanish)
The applicant claims that the Court should:
—     declare incompatible with Regulation (EC) No 40/94 on
      the Community trade mark, in particular Article 15(2)(a)            An action against the Office for Harmonisation in the Internal
      and/or Article 42(2) and (3) thereof, the decision of the           Market (OHIM) was brought before the Court of First Instance