CELEX: 62008TN0374
Language: en
Date: 2008-09-10 00:00:00
Title: Case T-374/08: Action brought on 10 September 2008 — Aldi Einkauf v OHIM — Illinois Tools Works (TOP CRAFT)

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