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Document C2004/106/137

Case T-28/04: Actionbrought on 22 January 2004 by Mühlens GmbH & Co. KG against the Office for Harmonisationin the Internal Market (Trade Marks and Designs) (OHIM)

OL C 106, 2004 4 30, p. 67–68 (ES, DA, DE, EL, EN, FR, IT, NL, PT, FI, SV)

30.4.2004   

EN

Official Journal of the European Union

C 106/67

Action brought on 22 January 2004 by Mühlens GmbH & Co. KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-28/04)

(2004/C 106/137)

Language of the case to be determined pursuant to Article 131(2) of the Rules of Procedure — language in which the application was submitted: German

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 22 January 2004 by Mühlens GmbH & Co. KG, Cologne (Germany), represented by T. Schulte-Beckhausen, lawyer. Mr Mirco Cara, Trezzano Sul Naviglio, Milan (Italy), was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

—

annul the decision of the First Board of Appeal of OHIM of 20 November 2003 (Case R 10/2003-1);

—

order OHIM to pay the costs.

Pleas in law and main arguments:

Applicant for Community trade mark:

Mr Mirco Cara

Community trade mark sought:

Figurative mark ‘TOSKA LEATHER’ for goods in Classes 16, 18 and 25 (including books, bags and clothing for men, women and children in general) – Application No. 1 079 888

Proprietor of mark or sign cited in the opposition proceedings:

The applicant

Mark or sign cited in opposition.

The German word mark ‘TOSCA’ for perfumery (including ‘Parfum’, ‘Eau de Toilette’ and ‘Eau de Parfum Pour Femmes’

Decision of the Opposition Division:

Opposition upheld in respect of goods in Class 25. Opposition refused as to the remainder.

Decision of the Board of Appeal:

Applicant's appeal rejected.

Pleas in law:

 

The opposition on the basis of the mark cited (a well-known mark) was well founded under Article 8(1)(b) of Regulation (EC) No 40/94.  (1)

 

likelihood of confusion between the conflicting signs.

 

similarity of the conflicting goods.

 

the mark cited in opposition is a mark which has a reputation within the meaning of Article 8(5) of Regulation (EC) No 40/94.

(1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).

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