CELEX: C2006/060/79
Language: en
Date: 2006-03-11 00:00:00
Title: Case T-435/05: Action brought on  5 December 2005  — Danjaq/OHIM

11.3.2006   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 60/41
            
         Action brought on 5 December 2005 — Danjaq/OHIM
   (Case T-435/05)
   (2006/C 60/79)
   Language in which the application was lodged: English
   Parties
   
      Applicant: Danjaq LLC (Santa Monica, USA) [represented by: L. Berg, S. Skrein, Solicitors and G. Hobbs, G. Hollingworth, Barristers]
   
      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   
      Other party to the proceedings before the Board of Appeal: Mission Productions GmbH (Munich, Germany)
   Form of order sought
   
               —
            
            
               Annul the decision of the Board of Appeal in case number R 1118/2004-1;
            
         
               —
            
            
               allow the opponent's opposition to Community trade mark application number 2 256 378, or alternatively remit the opposition to the Office for Harmonisation in the Internal Market for further consideration in accordance with the judgment of the Court,
            
         
               —
            
            
               award the opponent its costs of the proceedings.
            
         Pleas in law and main arguments
   
      Applicant for the Community trade mark: Mission Productions GmbH
   
      Community trade mark concerned: The word mark ‘Dr. No’ for goods in classes 9, 12, 18, 25 and 32 — application No 2 256 378
   
      Proprietor of the mark or sign cited in the opposition proceedings: The applicant
   
      Mark or sign cited: The earlier well-known mark, earlier non-registered mark and earlier sign used in the course of trade ‘Dr. No’ and ‘Dr. NO’ for films, DVDs, comic books, music recordings, books, posters and action figures (toys)
   
      Decision of the Opposition Division: Opposition rejected in its entirety
   
      Decision of the Board of Appeal: Dismissal of the appeal
   
      Pleas in law: Infringement of Article 8(2)(c) of Council Regulation No 40/94 as the Board of Appeal misinterpreted Article 6 bis of the Paris Convention by holding that use within the Community had to be proved by the applicant.
   Infringement of Article 8(1)(a) and (b) of Council Regulation No 40/94 since there is a likelihood of confusion between the conflicting trade marks as the conflicting marks and several of the goods covered by these marks are identical.
   Infringement of Articles 8(4) and 73 of Council Regulation No 40/94 and Rules 50(2) and 52(1) of Commission Regulation No 2868/95 because 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 numerous earlier rights and that it had used the marks cited in the opposition in the course of trade.