Action brought on 25 August 2008 - Matratzen Concord v OHIM - Barranco Schnitzler and Barranco Rodriguez (MATRATZEN CONCORD)

(Case T-351/08)

Language in which the application was lodged: German

Parties

Applicant: Matratzen Concord GmbH (Cologne, Germany) (represented by: J. Albrecht, lawyer)

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

Other parties to the proceedings before the Board of Appeal of OHIM: Pablo Barranco Schnitzler (Sant Just Desvern, Spain) and Mariano Barranco Rodriguez (Sant Just Desvern)

Form of order sought

annul the decision of the Second Board of Appeal of OHIM of 30 May 2008 (Case R 1034/2007-2);

order OHIM to pay the costs, including those of the proceedings before the Board of Appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: figurative mark 'MATRATZEN CONCORD' for goods in Classes 10, 20 and 24 (Application No 3 355 369)

Proprietors of the mark or sign cited in the opposition proceedings: Pablo Barranco Schnitzler and Mariano Barranco Rodriguez

Mark or sign cited in opposition: national word mark 'MATRATZEN' for goods in Class 20

Decision of the Opposition Division: Refusal of the application for a Community trade mark

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94, in that there is no likelihood of confusion between the conflicting marks, and infringement of Article 43(2) of that regulation, in that no proof has been provided of genuine use of the mark cited in opposition.

____________