Action brought on 23 June 2008 - Ravensburger v OHIM - Educa Borras (EDUCA Memory game)

(Case T-243/08)

Language in which the application was lodged: English

Parties

Applicant: Ravensburger AG (Ravensburg, Germany) (represented by: G. Würtenberger, lawyer, and R. Kunze, lawyer and Solicitor)

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

Other party to the proceedings before the Board of Appeal: Educa Borras SA (Sant Quirze del Valles, Barcelona, Spain)

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 8 April 2008 in case R 597/2007-2; and

Order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The figurative mark "EDUCA Memory game" for goods in class 28 - Community trade mark registration No 495 036

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

Party requesting the declaration of invalidity of the Community trade mark: The applicant

Trade mark right of the party requesting the declaration of invalidity: The international word trade mark "MEMORY" registration No R 393 512; the Benelux word trade mark "MEMORY" registration No 38 328; the German word trade mark "MEMORY" registration No 964 625

Decision of the Cancellation Division: Invalidity of the Community trade mark concerned

Decision of the Board of Appeal: Annulment of the decision of the Cancellation Division

Pleas in law: (i) infringement of Article 8(1) of Council Regulation No 40/94 as the Board of Appeal erred in concluding that the potentially colliding element in the Community trade mark concerned is of purely descriptive nature and thus cannot cause a risk of confusion with the applicant's earlier trade marks; (ii) infringement of Article 8(5) of Council Regulation No 40/94 as the Board of Appeal erred in requiring that applicant prove a risk of confusion; (iii) infringement of Article 74 of Council Regulation No 40/94 as the Board of Appeal did not properly take into account the labelling practice of the relevant market; (iv) infringement of Article 75 of Council Regulation No 40/94 as the Board of Appeal failed to convene a hearing, as requested by the applicant.

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