Appeal brought on 31 December 2007 by AMS Advanced Medical Services GmbH against the judgment of the Court of First Instance (Fifth Chamber) delivered on 18 October 2007 in Case T-425/03 AMS Advanced Medical Services GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case C-565/07 P)

(2008/C 64/34)

Language of the case: German

Parties

Appellant: AMS Advanced Medical Services GmbH (represented by: S. Schäffler, Rechtsanwältin)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), American Medical Systems, Inc.

Form of order sought

Pleas in law and main arguments

The appeal is based on an infringement of Community law by the Court of First Instance. It was not until the proceedings before the Board of Appeal that the Court of First Instance refused to uphold the appellant's request for the opponent to prove the use of its mark. The Court of First Instance thereby misconceived the principle of continuity in terms of functions between OHIM departments and infringed Article 43(2) and (3) and Article 74 of Regulation No 40/94.

Pursuant to the principle of continuity in terms of functions between OHIM departments the Board of Appeal should have based its decision on all of the claims made by the appellant both in the proceedings before the Opposition Division and those before the Board of Appeal.