Action brought on 11 September 2006 - Professional Golfers' Association v OHIM - Ladies Professional Golf Association (LPGA)

(Case T-248/06)

Language in which the application was lodged: English

Parties

Applicant: The Professional Golfers' Association Limited (Sutton Coldfield, United Kingdom) (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: Ladies Professional Golf Association (Corporation) (Daytona Beach, USA)

Form of order sought

-    Annul the decision of the Second Board of Appeal of OHIM of 11 July 2006 in Case number R1087/2005-2 in its entirety on the grounds that Articles 73 and 74 of Council Regulation No 40/94 were breached; and

order the case to be referred back to the Board of Appeal and be reheard by a different panel of judges from those who deliberated in the decision issued on 11 July 2006;

or, in the alternative, if the Court finds that Articles 73 and 74 of Council Regulation 40/94 were not breached:

overturn the decision of the Second Board of Appeal of OHIM of 11 July 2006 in Case number R1087/2005-2 and find in favour of The Professional Golfers' Association Limited;

and

order that the costs of the proceedings be borne by the defendant.

Pleas in law and main arguments

Applicant for the Community trade mark: Ladies Professional Golf Association Corp.

Community trade mark concerned: The figurative mark 'LPGA' for goods and services in classes 25, 28 and 41 - application No 2 354 173

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited: The Community word mark 'PGA' for goods and services in classes 16, 25, 28, 37, 41 and 42

Decision of the Opposition Division: Rejection of the opposition in its entirety

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Violation of Article 73 of Council Regulation No 40/94 as neither of the parties has the opportunity to comment on the results of the Internet research carried out by the Board of Appeal.

Violation of Article 74 of the regulation as the Board of Appeal took into account facts that had not been introduced or substantiated by the parties and did not take into account facts, evidence and arguments, which had been duly introduced by the applicant.

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