Action brought on 9 June 2008 - Paul Alfons Rehbein v OHIM - Hervé Dias Martinho and Manuel Dias Martinho (Outburst)

(Case T-214/08)

Language in which the application was lodged: English

Parties

Applicant: Paul Alfons Rehbein (GmbH & Co.) KG (Glinde, Germany) (represented by: T. E. Lampel, lawyer)

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

Other parties to the proceedings before the Board of Appeal: Hervé Dias Martinho and Manuel Carlos Dias Martinho (Le Plessis Trévise, France)

Form of order sought

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 13 March 2008 in case R 1261/2007-2; and

order OHIM to pay the costs incurred by the applicant.

Pleas in law and main arguments

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

Community trade mark concerned: The figurative mark "Outburst" for goods in classes 16, 18 and 25 - application No 4 318 333

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

Mark or sign cited: The national word mark "Outburst" for goods in class 25 - German trade mark registration No 399 40 713

Decision of the Opposition Division: Rejection of the opposition in its entirety

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 43(2) and (3) of Council Regulation No 40/94 as the earlier national trade mark has been put to genuine use in connection with the goods and services in respect of which it is registered; infringement of Article 76(1)(f) of the said regulation as the Board of Appeal erred in not taking into account the affidavit of the applicant's managing director; infringement of Article 74(2) of the said regulation and of Rule 22(1) and (2) of Commission Regulation No 2868/95¹ as the further evidence submitted at the appeal's stage of the opposition proceedings is admissible and has to be taken into account when assessing the genuine use of the opposition mark; infringement of applicant's right to be heard as the Board of Appeal should have taken into account evidence of use submitted after the time limit.

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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).