Action brought on 20 April 2007 - Allos Walter Lang v OHIM - Kokoriko (Coco Rico)

(Case T-126/07)

Language of the case: German

Parties

Applicant: Allos Walter Lang (Mariendrebber, Germany) (represented by: H. Heldt, Rechtsanwalt)

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

Other party in the proceedings before the OHIM: KOKORIKO Ltda.

Form of order sought

Suspension of proceedings until final determination on the actions for annulment pending before the OHIM in cases 2069 C and 2070 C;

Annulment of the decision of the Opposition Division on 31 May 2006 reference number B 696684 and the decision of the Second Board of Appeal of 16 February 2007, reference number R 1047/2006-2 and reference of the matter back to the Opposition Division for reconsideration.

OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark in question: The word mark "Coco Rico" for goods in Class 30 (Application No 2 949 899).

Proprietor of the trade marks relied upon in opposition: KOKORIKO Ltda.

Trade marks relied upon in opposition: The work mark "KOKORIKO" (Community Trade Mark No 101 386) for goods and services in Classes 29, 30 and 42, and the figurative mark "KOKORIKO" (Community Trade Mark No 101 626) for goods and services in Classes 29, 30 and 42.

Decision of the Opposition Division: Opposition upheld and application for registration dismissed.

Decision of the Board of Appeal: Appeal dismissed.

Grounds of appeal: In making its decision, the Opposition Division failed to take account of applicant's claim for annulment of the marks relied on in opposition. In the submission of the applícant, there is no further obstacle under Article 8(1)(b) of Regulation (EC) No 40/94 ¹to the registration being sought by the applicant in the event of the opposing marks being annulled.

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¹ - Council Regulation (EC) No 40/94 of 20 December 1993 on the Community Trade Mark (OJ 1994 L 11, p. 1)