Action brought on 18 March 2010 - Amecke Fruchtsaft v OHIM - Uhse (69 Sex up)

(Case T -125/10)

Language in which the application was lodged: German

Parties

Applicant: Amecke Fruchtsaft GmbH & Co. KG (Menden, Germany) (represented by: R. Kaase and J.-C. Plate, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Beate Uhse Einzelhandels GmbH (Flensburg, Germany)

Form of order sought

Declare the application, together with the annexes submitted, made against the decision of the First Board of Appeal of OHIM of 12 January 2010 in Case R 612/2009-1, admissible; and

Annul the contested decision on the ground of incompatibility with Article 8(1)(b) of Regulation (EC) No 40/94; ¹

Order the defendant to pay the costs of the proceedings, including the costs before the Board of Appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: Beate Uhse Einzelhandels GmbH

Community trade mark concerned: Word mark '69 Sex up' for goods and services in Classes 3, 5, 9, 29, 30, 32, 33, 38 and 41 (application No 5 418 108)

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

Mark or sign cited in opposition: German word mark 'sex:h:up' No 305 31 669.9 for goods in Classes 5, 29, 30 and 32

Decision of the Opposition Division: To uphold the opposition for all disputed goods

Decision of the Board of Appeal: To rescind the contested decision and reject the opposition

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 40/94, since there is a likelihood of confusion between the conflicting marks

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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).