Action brought on 9 July 2012 - Message Management v OHIM - Absacker (ABSACKER of Germany)

(Case T-304/12)

Language in which the application was lodged: German

Parties

Applicant: Message Management GmbH (Wiesbaden, Germany) (represented by: C. Konle, lawyer)

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

Other party to the proceedings before the Board of Appeal: Absacker GmbH (Cologne, Germany)

Form of order sought

The applicant claims that the Court should:

annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 March 2012 in Case R 1028/2011-1 and dismiss the appeal relating to Opposition No B 1663700, which was brought against Community trade mark application No 8753691 filed by the applicant;

order the defendant to pay the costs;

in the alternative, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 March 2012 in Case R 1028/2011-1 and dismiss the appeal relating to Opposition No B 1663700, which was brought against Community trade mark application No 8753691 filed by the applicant, in so far as concerns Classes 32 and 33;

in the further alternative, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 March 2012 in Case R 1028/2011-1 and dismiss the appeal relating to Opposition No B 1663700, which was brought against Community trade mark application No 8753691 filed by the applicant, in so far as concerns Class 33.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: the figurative mark in black and white, which represents an eagle and contains the word elements 'ABSACKER of Germany', for goods in Classes 25, 32 and 33 - Community trade mark application No 8 753 691

Proprietor of the mark or sign cited in the opposition proceedings: Absacker GmbH

Mark or sign cited in opposition: the national figurative marks in black, orange and white containing the word elements 'ABSACKER' for goods in Classes 25, 33 and 43

Decision of the Opposition Division: the opposition was rejected

Decision of the Board of Appeal: the appeal was upheld and the mark applied for was rejected

Pleas in law: Erroneous assumption that the signs are similar and that there is a likelihood of confusion

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