Action brought on 18 September 2010 - Dosenbach-Ochsner v OHIM - Sisma (Representation of a rectangle with elephants)

(Case T-424/10)

Language in which the application was lodged: German

Parties

Applicant: Dosenbach-Ochsner AG Schuhe und Sport (Dietikon, Switzerland) (represented by: O. Rauscher, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Sisma SpA (Mantova, Italy)

Form of order sought

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 July 2010 in Case R 1638/2008-4;

Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The figurative mark representing a rectangle with elephants for goods in Classes 10, 16, 21, 24 and 25

Proprietor of the Community trade mark: SISMA S.p.A.

Applicant for the declaration of invalidity: the applicant

Trade mark right of applicant for the declaration: international and national figurative marks representing an elephant and the national word mark 'elefanten' for goods in Classes 24 and 25

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

Decision of the Board of Appeal: dismissal of the appeal

Pleas in law: Infringement of Article 53(1)(a) in conjunction with Article 8(1)(b) and (2)(a) of Regulation (EC) No 207/2009¹ as the marks at issue are conceptually, visually and aurally similar and the applicant has expressly submitted that its trade marks have acquired a highly distinctive character as a result of intensive use or their reputation.

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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).