CELEX: 62009TN0426
Language: en
Date: 2009-10-21 00:00:00
Title: Case T-426/09: Action brought on 21 October 2009 — Bayerische Asphalt-Mischwerke v OHIM — Koninklijke BAM Groep (bam)

16.1.2010   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 11/29
            
         Action brought on 21 October 2009 — Bayerische Asphalt-Mischwerke v OHIM — Koninklijke BAM Groep (bam)
   (Case T-426/09)
   2010/C 11/56
   Language in which the application was lodged: English
   
      Parties
   
   
      Applicant: Bayerische Asphaltmischwerke GmbH & Co. KG für Straβenbaustoffe (Hofolding, Germany) (represented by: R. Kunze, lawyer and Solicitor, and G. Würtenberger, lawyer)
   
      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   
      Other party to the proceedings before the Board of Appeal: Koninklijke BAM Groep NV (Bunnik, The Netherlands)
   
      Form of order sought
   
   
               —
            
            
               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 August 2009 in case R 1005/2008-2, in so far as the opposition was rejected with respect to “non-metallic rigid piping for building; transportable structures; monuments, not of metal; building construction; repairs; repair and maintenance”;
            
         
               —
            
            
               Grant the opposition against the Community trade mark concerned also for “non-metallic rigid piping for building; transportable structures; monuments, not of metal; building construction; repairs; repair and maintenance”;
            
         
               —
            
            
               Order the defendant to pay the costs.
            
         
      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 figurative mark “bam”, for goods and services in classes 6, 19, 37 and 42
   
      Proprietor of the mark or sign cited in the opposition proceedings: The applicant
   
      Mark or sign cited: German trade mark registration of the figurative mark “bam”, for goods in classes 7 and 19
   
      Decision of the Opposition Division: Allowed the opposition partially
   
      Decision of the Board of Appeal: Annulled partially the decision of the Opposition Division
   
      Pleas in law: Infringement of Articles 8(1)(b) Council Regulation No 207/2009 as the Board of Appeal failed to conclude that there was similarity between the goods and services covered by the Community trade mark concerned, on one hand, and the goods covered by the trade mark cited in the opposition proceedings, on the other hand; misuse of power as the Board of Appeal acted ultra vires; infringement of Article 75 of Council Regulation No 207/2009 as the Board of Appeal failed to deal, in a comprehensive manner, with the applicant’s arguments set forth in the appeal substantiation; infringement of Article 63(1) of Council Regulation No 207/2009 as the Board of Appeal erred in limiting the scope of protection of the Community trade mark concerned and, thus, wrongly failed to take into account all relevant factors.