Action brought on 28 May 2009 - Yorma's AG v OHIM - Norma Lebensmittelfilialbetrieb (YORMAS'S)

(Case T-213/09)

Language in which the application was lodged: German

Parties

Applicant: Yorma's AG (Deggendorf, Germany) (represented by A. Weiß, 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: Norma Lebensmittelfilialbetrieb GmbH & Co. KG

Form of order sought

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 February 2009 in Case R 1879/2007-1; and

-    Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: Figurative mark composed of a word element 'YORMA'S' in blue and yellow for services in Classes 35 and 42 (Registration No 2 048 205)

Proprietor of the mark or sign cited in the opposition proceedings: Norma Lebensmittelfilialbetrieb GmbH & Co. KG

Mark or sign cited in opposition: Word mark 'Norma' (Community trade mark No 213 769) for goods in Classes 3, 5, 8, 16, 18, 21, 25, 28, 29, 30, 31, 32, 33, 34, 35 and 36 and the commercial symbol 'NORMA' used in the course of trade in Germany, as well as the figurative sign 'NORMA'

Decision of the Examiner: Rejection of the opposition.

Decision of the Board of Appeal: Annulment of the appealed decision and rejection of the Community trade mark application.

Pleas in law: Infringement of Article 8(1)(b) and (4) of Council Regulation No 40/94 (now Article 8(1)(b) and (4) of Regulation (EC) No 207/2009¹)

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¹ - Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).