Action brought on 27 November 2009 - McLoughney v OHIM - Kern (Powerball)

(Case T-484/09)

Language in which the application was lodged: English

Parties

Applicant: Rory McLoughney (Thurles, Ireland) (represented by: J. M. Stratford-Lysandrides, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Ernst Kern (Zahling, 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 30 September 2009 in case R 1547/2006-4;

Allow the opposition to the Community trade mark application No 3 164 779; and

In the alternative, remit the opposition to the defendant for further consideration in accordance with the judgment of the Court.

Pleas in law and main arguments

Applicant for the Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The word mark "Powerball", for goods in classes 10, 25 and 28

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited: Non-registered mark "POWERBALL", used in the course of trade in Ireland and the United Kingdom

Decision of the Opposition Division: Rejected the opposition in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 8(3) and 73 of Council Regulation No 40/94 (which became Articles 8(3) and 75, respectively, of Council Regulation No 207/2009) and Rules 50(2) and 52(1) of Commission Regulation No 2868/95¹, as the Board of Appeal failed to consider the opposition under Article 8(3) of Council Regulation No 40/94 and should have recognised that the applicant had the requisite authority to oppose the Community trade mark concerned; infringement of Articles 8(4) and 73 of Council Regulation No 40/94 (which became Article 8(4) and 75, respectively, of Council Regulation No 207/2009) and Rules 50(2) and 52(1) of Commission Regulation No 2868/95, as 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 the earlier rights and that it had used the mark cited in the opposition in the course of trade.

____________

¹ - Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).