Action brought on 10 September 2012 — Klingel v OHIM — Develey (JUNGBORN)

(Case T-401/12)

(2012/C 331/60)

Language in which the application was lodged: German

Parties

Applicant: Robert Klingel OHG (Pforzheim, Germany) (represented by: T. Zeiher, lawyer)

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

Other party to the proceedings before the Board of Appeal: Develey Holding GmbH & Co. Beteiligungs KG (Unterhaching, Germany)

Form of order sought

—	Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 9 July 2012 in Case R 936/2011-4;

—	reject the opposition to the protection of international registration W 1 002 323 — JUNGBORN;

—	in the alternative, refer the case back to the Board of Appeal for a further decision;

—	order the unsuccessful party to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Robert Klingel OHG

Community trade mark concerned: Word mark ‘JUNGBORN’ for goods in Classes 29, 30, 32 and 33 — international registration designating the European Union No W 1 002 323

Proprietor of the mark or sign cited in the opposition proceedings: Develey Holding GmbH & Co. Beteiligungs KG

Mark or sign cited in opposition: German word mark ‘BORN’ for goods in Classes 29, 30 and 32

Decision of the Opposition Division: The opposition was allowed in part

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 41(1)(a) and Article 8(1)(b) of Regulation No 207/2009