Action brought on 2 August 2013 – TVR Automotive v OHIM – TVR Italia (TVR)

(Case T-398/13)

Language of the case: German

Parties

Applicant: TVR Automotive Ltd (Whiteley, United Kingdom) (represented by: A. von Mühlendahl and H. Hartwig, lawyers)

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

Other party to the proceedings before the Board of Appeal: TVR Italia Srl (Milan, Italy)

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 14 May 2013 in Case R 823/2011-2;

Dismiss the appeal of 14 April 2013 by TVR Italia Srl against the decision of the Opposition Division of OHIM of 14 February 2011, B 313 248;

Order the defendant OHIM and TVR Italia Srl, if it joins the proceedings, to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: TVR Italia Srl     

Community trade mark concerned: Figurative mark, containing the word elements ‘TVR ITALIA’, for goods and services in Classes 12, 25 and 37 – Community trade mark registration No 5 699 954

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

Mark or sign cited in opposition: National and Community word marks ‘TVR’ for goods and services in Classes 9, 11, 12, 25 and 41.

Decision of the Opposition Division: Opposition partially upheld

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

Pleas in law:

Infringement of Article 42(2) and (3) of Regulation No 207/2009;

Infringement of the principle res iudicata or ne bis in idem and of Article 42(2) of Regulation No 207/2009, in conjunction with Article 15 of Regulation No 207/2009