Notice for the OJ

 

Action brought on 5 December 2002 by Muswellbrook Limited against the Office for Harmonisation in the Internal Market (OHIM)

    (Case T-364/02)

    Language of the case: Spanish

An action against the Office for Harmonisation in the Internal Market (OHIM) was brought before the Court of First Instance of the European Communities on 5 December 2002 by Muswellbrook Limited, established in Dublin (Ireland), represented by J. Casulá Oliver, lawyer.

The applicant claims that the Court should:

(declare incompatible with Regulation (EC) No 40/94 on the Community trade mark, in particular Article 15(2)(a) and/or Article 42(2) and (3) thereof, the decision of the First Board of Appeal of the OHIM of 30 September 2002 in case No R 73/2000-1, inasmuch as it declares that the opponent has failed to prove genuine use in the Community of the Spanish trade mark No 88222 to distinguish ready-to-wear and other items of clothing in Class 25 during the five years preceding the publication of the application for a Community trade mark;

(annul that decision in its entirety;

(agree to vary that decision so as to declare that an assessment of and a ruling on the merits of the opposition to registration of Community trade mark No 277889 is appropriate, to which end the Court's judgment should declare that Community trade mark No 277889 is refused, or, in the alternative, refer the case back to the First Board of Appeal of the OHIM;

(order the defendant and, where appropriate, the intervener to pay all the costs of the proceedings and those incurred at the administrative stages of the opposition and appeal proceedings.

Pleas in law and main arguments

The applicant seeking the Community trade mark, the proprietor of the mark cited in opposition, the tenor of the decisions of the Opposition Division and the Board of Appeal and the pleas in law and main arguments are the same as those in Case T-362/02 (MUSWELLBROOK LIMITED v OHIM).

The Community trade mark in respect of which registration is sought is the mixed mark "NIKE" with "swoosh" graphic ( application No 277889 in respect of goods in Class 25 "clothing, footwear and headgear".

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