Action brought on 13 November 2006 — Buffalo Milke Automotive Polishing Products v OHIM — Werner & Mertz (Buffalo Milke Automotive Polishing Products)

(Case T-308/06)

(2006/C 326/135)

Language in which the application was lodged: English

Parties

Applicant: Buffalo Milke Automotive Polishing Products, Inc. (Pleasanton, USA) (represented by: F. de Visscher, E. Cornu and D. Moreau, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal: Werner & Mertz GmbH (Mainz, Germany)

Form of order sought

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘BUFFALO MILKE Automotive Polishing Products’ for goods and services in classes 3, 18 and 25 — application No 2 099 018

Proprietor of the mark or sign cited in the opposition proceedings: Werner & Mertz GmbH

Mark or sign cited: The national figurative mark ‘BÚFALO’ for goods in class 3

Decision of the Opposition Division: Rejection of the opposition

Decision of the Board of Appeal: Annulment of the Opposition Division's decision

Pleas in law: Infringement of Article 43 of Council Regulation No 40/94 and Rule 22 of Commission Regulation No 2868/95 as the Board of Appeal should not have taken into consideration the proof of use filed for the first time before it and outside the time limit set forth by the Opposition Division.