Action brought on 21 December 2009 - Gemmi Furs v OHIM - Lemmi-Fashion (GEMMI)
(Case T-522/09)
Language in which the application was lodged: English
Parties
Applicant: Gemmi Furs Oy (Loviisa, Finland) (represented by: J. Tanhuanpää, lawyer)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Other party to the proceedings before the Board of Appeal: Lemmi-Fashion Vertriebsgesellschaft mbH & Co. Bekleidungs KG (Fritzlar, 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 21 October 2009 in case R 1372/2008-4;
Dismiss the opposition filed by the other party to the proceedings before the Board pf Appeal;
Allow registration of the Community trade mark concerned "GEMMI", for all the goods in class 25, in accordance with the applicant's Community trade mark application;
Order the defendant to bear the costs of the applicant, including those incurred before the Board of Appeal; and
Order the other party to the proceedings before the Board of Appeal to bear the costs of the applicant, including those incurred before the Board of Appeal, should it decide to become a party in this case.
Pleas in law and main arguments
Applicant for the Community trade mark: The applicant
Community trade mark concerned: The mark "GEMMI", for goods in classes 18, 24 and 25
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: German trade mark registration of the mark "LEMMI", for goods in class 25; international trade mark registration of the mark "LEMMI fashion", for goods in class 25; earlier non-registered trade mark "LEMMI", used in the course of trade in Germany for clothing
Decision of the Opposition Division: Rejected the opposition in its entirety
Decision of the Board of Appeal: Annulled the contested decision and rejected the application for the Community trade mark concerned, for goods in class 25
Pleas in law:
Infringement of Rule 19(2)(a)(i) and (ii) of Commission Regulation No 2868/95
1, as the Board of Appeal has not correctly and/or sufficiently addressed the substantiation of earlier rights; infringement of Rule 22(3) of Commission Regulation No 2868/95, as the Board of Appeal has not correctly and/or sufficiently assessed the proof of use submitted; infringement of Article 8(1)(b) of Council Regulation No 207/2009 as the Board of Appeal: (i) has not correctly assessed the similarity of the trade marks concerned; and (ii) has not correctly assessed the degree of attention of the relevant public; infringement of Article 75 of Council Regulation No 207/2009, as the Board of Appeal failed to grant the applicant the opportunity to present its comments on the evidence purporting to substantiate earlier rights; infringement of the principles of protection of legitimate expectations, equal treatment and legality.