Action brought on 9 October 2009 - Deutsche Bahn v OHIM (Combination of the colours grey and red)

(Case T-404/09)

Language in which the application was lodged: German

Parties

Applicant: Deutsche Bahn AG (Berlin, Germany) (represented by U. Hildebrandt, K. Schmidt-Hern and B. Weichhaus, lawyers)

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

Forms of order sought

Annulment of the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 July 2009 (Case R 379/2009-1);

Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: A trade mark consisting of the combination of the colours grey and red for services in Class 39 (Application No 6 733 315)

Decision of the Examiner: Application refused

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: In its assessment of the mark applied for, the Office for Harmonisation in the Internal Market applied criteria which are inconsistent with the case-law of the Court of First Instance; it was, in particular, ignored that different criteria are applicable to the registration of colour marks for services than for goods.

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