Action brought on 11 March 2009 - von Oppeln-Bronikowski and von Oppeln-Bronikowski v OHIM - Pomodoro Clothing (promodoro)

(Case T-103/09)

Language in which the application was lodged: English

Parties

Applicants: Anna Elisabeth Richarda von Oppeln-Bronikowski and Baron Zebulon Baptiste von Oppeln-Bronikowski (Düsseldorf, Germany) (represented by: V. Knies, lawyer)

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

Other party to the proceedings before the Board of Appeal: Pomodoro Clothing Company Ltd. (London, United Kingdom)

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 7 January 2009 in case R 325/2008-1

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark "promodoro", for goods and services in classes 25, 28 and 35 - application No 3 587 557

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: United Kingdom trade mark registration of the word mark "POMODORO" for goods in class 25

Decision of the Opposition Division: Partially rejected the application

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Rule 22 of Commission Regulation No 2868/95¹ as the Board of Appeal wrongly took into account proof of use submitted out of time by the other party to the proceedings before the Board of Appeal; Infringement of Article 43(2) of Council Regulation 40/94 as the Board of Appeal failed to conclude that the evidence submitted by the other party to the proceedings before the Board of Appeal within the required time limit did not constitute sufficient proof of use of the trade mark cited in the opposition proceedings; Infringement of Article 8(2) of Council Regulation 40/94 as the Board of Appeal wrongly held that there was a likelihood of confusion between the trade marks in question.

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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).