Action brought on 30 September 2008 - Grain Millers v OHIM - Grain Millers (GRAIN MILLERS)

(Case T-430/08)

Language in which the application was lodged: English

Parties

Applicant: Grain Millers, Inc. (Eden Prairie, United States) (represented by: L.-E. Ström, lawyer)

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

Other party to the proceedings before the Board of Appeal: Grain Millers GmbH & Co. KG (Bremen, Germany)

Form of order sought

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 July 2008 in case R 478/2007-2; and

Order the other party to the proceedings before the Board of Appeal to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark "GRAIN MILLERS" for goods in classes 29, 30 and 31 - application No 365 0256

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

Mark or sign cited: German "business designation" "GRAIN MILLERS" and its figurative version

Decision of the Opposition Division: Partially rejected the opposition

Decision of the Board of Appeal: Partial dismissal of the appeal

Pleas in law: Infringement of Article 8(4) of Council Regulation No 40/94 as the Board of Appeal has overestimated the value of the evidence submitted by the other party to the proceedings before the Board of Appeal in order to substantiate prior rights over the earlier trade mark.

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