Action brought on 21 January 2009 - Engelhorn v OHIM - The Outdoor Group (peerstorm)

(Case T-30/09)

Language in which the application was lodged: German

Parties

Applicant: Engelhorn KGaA (Mannheim, Germany) (represented by: W. Göpfert, 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: The Outdoor Group Limited (Northampton, United Kingdom)

Form of order sought

annul Decision R-167/2008-5 of the Fifth Board of Appeal of OHIM of 28 October 2008; and

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant.

Community trade mark concerned: the word mark 'peerstorm' for goods and services in Class 25 (Community trade mark application No 4 115 382)

Proprietor of the mark or sign cited in the opposition proceedings: The Outdoor Group Limited

Mark or sign cited in opposition: the word mark 'PETER STORM' for goods in Class 25 (Community trade mark No 833 566) and the British trade mark 'PETER STORM' for goods in Class 18

Decision of the Opposition Division: opposition rejected

Decision of the Board of Appeal: annulment of the decision of the Opposition Division and rejection of the application for a Community trade mark

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 ¹ as there is no likelihood of confusion between the opposing trade marks, and infringement of Rule 22 of Regulation (EC) No 2868/95 ² inasmuch as use preserving the right to use the trade mark cited in opposition has not been sufficiently proven.

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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).

² - Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).