Action brought on 28 May 2010 - medi v OHIM - Deutsche Medi Präventions (deutschemedi.de)

(Case T-247/10)

Language in which the application was lodged: German

Parties

Applicant: medi GmbH & Co KG (Bayreuth, Germany) (represented by: D. Terheggen, H. Lindner and T. Kiputh, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Deutsche Medi Präventions GmbH (Düsseldorf, Germany)

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 16 March 2010 in Case R 1366/2008-4;

reject the application for Community trade mark EM 5 089 099 in its entirety;

order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Deutsche Medi Präventions GmbH.

Community trade mark concerned: word mark 'deutschemedi.de' for services in Class 35.

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

Mark or sign cited in opposition: German word mark 'medi.eu' for goods and services in Classes 5, 10, 35, 39, 41, 42 and 44; German word mark 'medi welt' for goods and services in Classes 5, 10, 35, 38, 39, 41, 42, 43 and 44; German word mark 'medi-Verband' for goods and services in Classes 5, 10, 35, 38, 39, 41, 42, 43 and 44; Community word mark 'World of medi' for goods and services in Classes 3, 5, 10, 35, 41 and 42; German figurative mark, containing the word elements 'medi Ich fühl mich besser', for goods and services in Classes 5, 10, 35, 38, 39, 41, 42, 43 and 44; a trade and commercial name in commercial use containing the word element 'medi' for all goods and services to which the abovementioned marks relate in the territory of the European Union.

Decision of the Opposition Division: Opposition upheld.

Decision of the Board of Appeal: Appeal allowed and opposition rejected.

Pleas in law: Infringement of Article 8(1) and (4) of Regulation (EC) No 207/2009, ¹ because there is a likelihood of confusion between the trade marks at issue and the applicant has proved that it owns the commercial rights including the right to a commercial name, and infringement of the right to a hearing under Article 73 of Regulation No 207/2009.

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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).