Action brought on 23 January 2009 - dm-drogerie markt v OHIM - Distribuciones Mylar (dm)

(Case T-36/09)

Language in which the application was lodged: English

Parties

Applicant: dm-drogerie markt GmbH + Co. KG (Karlsruhe, Germany) (represented by: O. Bludovsky and C. Mellein, lawyers)

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

Other party to the proceedings before the Board of Appeal: Distribuciones Mylar, SA (Gelves, Spain)

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 30 October 2008 in case R 228/2008-1 and, by way of correction, reject the opposition entirely;

Alternatively, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 October 2008 in case R 228/2008-1 and remit the case to OHIM;

Alternatively, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 October 2008 in case R 228/2008-1; and

Order the other party to the proceedings before the Board of Appeal to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark "dm", for goods in classes 1, 3-6, 8-11, 14, 16, 18, 20-22, 24-32, 34 and for services in class 40

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

Mark or sign cited: Spanish trade mark registration No 2 561 742 of the figurative mark "DM" for goods and services in classes 9 and 39

Decision of the Opposition Division: Partially allowed the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 57 and 59 of Council Regulation 40/94 as the Board of Appeal erred in its finding that the letter of the defendant of 8 June 2007 did not suspend the appeal period; Infringement of Article 8(1)(b) of Council Regulation 40/94 as the Board of Appeal wrongly assessed that there was a likelihood of confusion between the trade marks concerned due to the similarity of the goods covered; Infringement of Rules 17(2) and (4) of Commission Regulation No 2868/95¹, as the Board of Appeal failed to find that the other party to the proceedings before the Board of Appeal failed to state the essential details of the opposition.

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¹ - Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).