Judgment of the General Court (Seventh Chamber) of 9 July 2010 – Grain Millers v OHIM – Grain Millers (GRAIN MILLERS)

(Case T-430/08)

Community trade mark – Opposition proceedings – Application for Community word mark GRAIN MILLERS – Earlier national business name Grain Millers and its figurative representation – Partial refusal of registration – Relative ground for refusal – Likelihood of confusion – Article 8(4) of Regulation (EC) No 40/94 (now Article 8(4) of Regulation (EC) No 207/2009)

Community trade mark – Definition and acquisition of the Community trade mark – Relative grounds for refusal – Opposition by the holder of an unregistered mark or other sign used in trade – Use of the sign in trade – Meaning (Council Regulation No 40/94, Art. 8(4)) (see para. 28)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 23 July 2008 (Case R 478/2007‑2), concerning opposition proceedings between Grain Millers GmbH & Co. KG and Grain Millers, Inc.

Information relating to the case

Applicant for the Community trade mark:	Grain Millers, Inc.
Community trade mark sought:	Word mark GRAIN MILLERS for goods in Classes 29, 30 and 31 – application No 365 0256
Proprietor of the mark or sign cited in the opposition proceedings:	Grain Millers GmbH & Co. KG
Mark or sign cited in opposition:	German business designation GRAIN MILLERS and its figurative version
Decision of the Opposition Division:	Opposition dismissed in part
Decision of the Board of Appeal:	Appeal dismissed in part

Operative part

The Court:

1. Dismisses the action;

2. Orders Grain Millers, Inc. to pay the costs.