Action brought on 8 November 2010 - Interkobo v OHIM - XXXLutz Marken (mybaby)

(Case T-523/10)

Language in which the application was lodged: Polish

Parties

Applicant: Interkobo Sp. z o.o. (Łódź, Poland) (represented by: R. Skubisz, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: XXXLutz Marken GmbH (Wels, Austria)

Form of order sought

declare invalid in its entirety the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 8 September 2010 in Case R 88/2009-4;

order the defendant and XXXLutz Marken GmbH to pay the costs of the proceedings, including the costs incurred by the applicant in the proceedings before the Board of Appeal and the Opposition Division of the Office for Harmonisation in the Internal Market.

Pleas in law and main arguments

Applicant for a Community trade mark: XXXLutz Marken GmbH.

Community trade mark concerned: figurative mark 'my baby' for goods in Class 28 - application no 4894416.

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

Mark or sign cited in opposition: national word mark 'MYBABY', national figurative mark 'mybaby' and international word mark 'MYBABY' for goods in Class 28.

Decision of the Opposition Division: upholding of the opposition and rejection of the application for a trade mark for goods in Class 28.

Decision of the Board of Appeal: annulment of the decision of the Opposition Division and rejection of the opposition.

Pleas in law: breach of Rule 20(1), in conjunction with Rule 19(2)(a)(i) and (ii) and Rule 19(3), of Regulation No 2868/95 ¹ and infringement of the right to seek protection of legitimate expectations.

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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).