Action brought on 3 February 2009 - Ifemy's v OHIM - Dada & Co Kids (Dada & Co. kids)

(Case T-50/09)

Language in which the application was lodged: English

Parties

Applicant: Ifemy's Holding GmbH (Munich, Germany) (represented by: H.G. Augustinowski, lawyer)

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

Other party to the proceedings before the Board of Appeal: Dada & Co Kids Srl (Prato, Italy)

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 27 November 2008 in case R 911/2008-4; and

Order OHIM 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 "Dada & Co. kids", for goods in class 25

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

Mark or sign cited: German trade mark registration No 30 114 449 of the word mark "DADA" for goods in class 25

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of the principles of equal treatment, faithful competition and rule of law as enshrined in Article 2 and 3 EC, as well as Articles 43 and 80(1) of Council Regulation 40/04 and Rules 50(2) and 80(2) of Commission Regulation No 2868/95¹, as the Board of Appeal failed to annul the decision of the Opposition Division which named the wrong applicant and, furthermore, as the Board of Appeal wrongly found that before the Opposition Division the applicant was given every opportunity to submit the relevant evidence.

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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).