Action brought on 21 November 2008 - Volkswagen v OHIM - Deutsche BP (SunGasoline)

(Case T -502/08)

Language in which the application was lodged: German

Parties

Applicant: Volkswagen AG (Wolfsburg, Germany) (represented by: H.-P. Schrammek, C. Drzymalla and S Risthaus, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Deutsche BP AG (Gelsenkirchen, Germany)

Form of order sought

Annul the decision of the Fourth Board of Appeal of OHIM of 19 September 2008 in appeal case R-513/2007-4, and

Order the defendant to bear the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Volkswagen.

Community trade mark concerned: word mark 'SunGasoline' in respect of goods and services in Classes 4, 7, 12, 35, 37 and 39 (Application No 3 418 647).

Proprietor of the mark or sign cited in the opposition proceedings: Deutsche BP AG.

Mark or sign cited in opposition: the German word mark 'GASOLIN' (Trade mark No 763 901) in respect of goods in Class 4.

Decision of the Opposition Division: Rejection of the opposition.

Decision of the Board of Appeal: Appeal upheld for certain goods in Class 4.

Pleas in law: Infringement of Article 15(2)(b) in conjunction with Article 43(2) of Regulation No 40/94¹ in that legally accepted use of the mark in opposition was not proved to the requisite level, and infringement of Article 8(1)(b) of Regulation No 40/1994 in that there is no likelihood of confusion between the marks at issue.

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¹ - Council Regulation (EC) No 40/1994 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).