Action brought on 1 September 2009 - Amecke Fruchtsaft v OHIM - Beate Uhse (69 Sex up)

(Case T-343/09)

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)

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

Form of order sought

Declare admissible the action brought against the decision of the First Board of Appeal of OHIM of 11 June 2009 in Case R 1728/2008-1;

Annul the contested decision on the ground of infringement of Article 8(1)(b) of Regulation (EC) No 207/2009; 

Order the defendant to pay the costs, including the costs of the opposition and the appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: Beate Uhse Einzelhandels GmbH.

Community trade mark concerned: the word mark "69 Sex up" for goods and services in Classes 32 and 41 (Application No 5 274 303).

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" for goods in classes 5, 29, 30 and 32 (No 30 531 669), although the opposition was directed solely against the registration for goods in class 32.

Decision of the Opposition Division: allow the opposition

Decision of the Board of Appeal: annulment of the contested decision and dismissal of the opposition.

Pleas in law: infringement of Article 8(1)(b) of Regulation No 207/2009 in that there is a likelihood of confusion between the two marks.

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¹ - Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).