Notice for the OJ

 

Action brought on 6 April 2002 by Matratzen Concord GmbH against Office for Harmonisation in the Internal Market (Trade marks and designs)

    (Case T-105/02)

(Language of the case to be determined in accordance with Article 131(2) of the Rules of Procedure ( Language in which the application was drafted: German)

An action against the Office for Harmonisation in the Internal Market (Trade marks and designs) was brought before the Court of First Instance of the European Communities on 6 April 2002 by Matratzen Concord GmbH, of Cologne (Germany), represented by W.-W. Wodrich, lawyer, with an address for service in Luxembourg. The other party before the Board of Appeal was Hukla Germany, S.A., of Castellbisbal (Spain).

The applicant claims that the Court should:

(Set aside the decision of the defendant (Second Board of Appeal) of 25 January 2002 (reference of the appeal R 1045/2000-2);

(Dismiss the opposition of the opponent of 17 December 1998 (reference B 115 057);

(Order the defendant and the opponent to pay all the costs of the procedure before the Opposition Division and the Board of Appeal and of the present proceedings.

Pleas in law and main arguments

Applicant for the Community trade mark:The applicantCommunity trade mark applied for:Figurative trade mark "MATRATZEN CONCORD" for goods in classes 10, 20 and 24 ( Application No 739722Proprietor of the right to the trade mark or sign asserted by way of opposition in the opposition proceedings:Hukla Germany, S.A.Trade mark or sign asserted by way of opposition:Spanish word trade mark "MATRATZEN" for goods in class 20Decision of the Opposition Division:Rejection of the application for goods in classes 20 and 24, rejection of the opposition as regards goods in class 10Decision of the Board of Appeal:Dismissal of the applicant's appealGrounds of claim:(No likelihood of confusion under Article 8 of Regulation (EC) No 40/94; ¹

(No similarity between the opposing marks;

(Incorrect division of the trade mark into its individual components;

(Failure to follow the case-law of the Court of Justice concerning the overall impression of the trade mark;

(Right of a competitor in the market to combine the designation of his main products with the name of his firm;

(Opposing mark not capable of protection.

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¹ - Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).