Action brought on 30 July 2008 - Tresplain Investments v OHIM - Hoo Hing (Golden Elephant Brand)

(Case T-303/08)

Language in which the application was lodged: English

Parties

Applicant: Tresplain Investments Ltd (Hong Kong, China) (represented by: D. McFarland, Barrister)

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

Other party to the proceedings before the Board of Appeal: Hoo Hing Holdings Ltd (Romford, United Kingdom)

Form of order sought

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 May 2008 in case R 889/2007-1; and

Order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The figurative mark "Golden Elephant Brand" for goods in class 30 - Community trade mark registration No 241 810

Proprietor of the Community trade mark: The applicant

Party requesting the declaration of invalidity of the Community trade mark: The other party to the proceedings before the Board of Appeal

Trade mark right of the party requesting the declaration of invalidity: The unregistered figurative mark "GOLDEN ELEPHANT", which had been in use in the United Kingdom

Decision of the Cancellation Division: Rejection of the application for a declaration of invalidity

Decision of the Board of Appeal: Annulment of the decision of the Cancellation Division

Pleas in law: Infringement of Article 73 and 74(1) of Council Regulation No 40/94 as the Board of Appeal erred by taking into account alleged facts, as well as legal presumptions and assumptions that had not been introduced or substantiated by the parties, while at the same time it refused to take into account other facts, evidence and arguments advanced by the applicant; infringement of Article 8(4) of Council Regulation 40/94 as the Board of Appeal erred in its finding that there was a likelihood of relevant confusion between the trade marks concerned and, as a result, a likelihood of damage.

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