Action brought on 4 August 2008 - G-Star Raw Denim v OHIM - ESGW Holdings (G Stor)

(Case T-309/08)

Language in which the application was lodged: English

Parties

Applicant: G-Star Raw Denim Kft. (Budapest, Hungary) (represented by: G. Vos, lawyer)

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

Other party to the proceedings before the Board of Appeal: ESGW Holdings Ltd (Tortola, British Virgin Islands)

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 14 April 2008 in case R 1232/2007-1;

Reject the registration of the Community trade mark application No 4 195 368; and

Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark "G Stor" for goods in class 9

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

Mark or sign cited: Benelux trade mark registration No 545 551 of the word mark "G-STAR" for goods in class 25; Community trade mark registration No 3 445 401 of the word/figurative mark "G-STAR" for goods in class 9 and 25; Community trade mark registration No 3 444 262 of the word mark "G-Star" for goods in class 9 and 25; earlier well-known trade mark "G-Star" protected in various countries for goods in class 25; Community trade mark registration No 3 444 171 of the mark "G-STAR RAW DENIM" for goods in class 9 and 35; Dutch trade name G-Star International B.V.

Decision of the Opposition Division: Allowed the opposition and rejected the application in its entirety

Decision of the Board of Appeal: Annulment of the contested decision and rejection of the opposition

Pleas in law: Infringement of Article 8(5) of Council Regulation No 40/94 as the Board of Appeal applied the wrong criteria when assessing the required similarity between the trade marks concerned and the required detriment to the earlier trade marks. In addition, the Board of Appeal also made an incorrect assessment of the facts with regard to the abovementioned assessments.

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