Action brought on 21 March 2007 - Deichmann-Schuhe v OHIM - Design for Woman (DEITECH)

(Case T -86/07)

Language in which the application was lodged: German

Parties

Applicant: Heinrich Deichmann-Schuhe GmbH & Co. KG (Essen, Germany) (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: Design for Woman SA

Form of order sought

The applicant claims that the Court should:

set aside the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 January 2007 (case number R 791/2006-2);

reject Community trade mark application No 3 378 643 as regards all goods in Class 25 (Clothing, footwear, headgear);

order the Office for Harmonisation in the Internal Market to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Design for Woman SA

Community trade mark concerned: The figurative mark 'DEITECH' for goods in Classes 18 and 25 (Application No 3 378 643)

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

Mark or sign cited in opposition: The German figurative mark 'DEI-tex' for goods in Class 25 and the international figurative mark 'DEI-tex' for goods in Class 25, the opposition having been brought against registration in Class 25

Decision of the Opposition Division: Rejection of the opposition

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 43(2) and (3) of Regulation (EC) No 40/94¹, as the evidence submitted by the applicant was not regarded as sufficient proof of genuine use and infringement of Article 8(1)(b) of Regulation No 40/94 as there is a likelihood of confusion between the marks in opposition.

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¹ - Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).