Notice for the OJ

 

Action brought on 15 September 2003 by ATOMIC Austria GmbH against the Office for Harmonisation in the Internal Market (Trade marks and Designs) (OHIM)

    (Case T-318/03)

    Language of the case : German

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of First Instance of the European Communities on 15 September 2003 by ATOMIC Austria GmbH, represented by G. Kucsko, lawyer.

Fabricas Agrupadas de Muñecas de Onil S.A., Alicante (Spain) was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

(annul the Decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market of 9 July 2003 relating to opposition procedure No B 442 873;

(order the Office for Harmonisation in the Internal Mark to reimburse the costs.

Pleas in law and main arguments

Applicant for Community trade mark: Fabricas Agrupadas de Muñecas de Onil S.A.

Community trade mark sought:Word mark "ATOMIC BLITZ" for goods in Class 28 (including games and playthings; gymnastic and sporting articles not included in other classes)

Proprietor of mark or sign cited

in the opposition proceedings:The applicant

Mark or sign cited in opposition:Austrian word mark "ATOMIC" for inter alia goods in Class 28 (including sporting and gymnastic articles and games)

Decision of the Opposition Division:Rejection of the opposition

Decision of the Board of Appeal:Dismissal of the applicant's appeal

Pleas in law:(the decision is incorrect because the Board of Appeal did not find against the Opposition Division for failing to take account of all the evidence adduced;

(in the alternative, the decision is incorrect because the Board failed to find that the Opposition Division's failure to draw the applicant's attention to the missing documents contrary to Rule 20(2) of Regulation (EC) No 2868/95 constituted a procedural irregularity;

(in the alternative, the decision was incorrect because the Board of Appeal failed to hold that the Opposition Division's failure to point out the altered practice was an infringement of the principle of the protection of legitimate expectations.

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