Action brought on 29 October 2015 – Repsol v OHIM – Basic (BASIC)

(Case T-609/15)

Language in which the application was lodged: English

Parties

Applicant: Repsol, SA (Madrid, Spain) (represented by: J. Devaureix, lawyer)

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

Other party to the proceedings before the Board of Appeal: Basic AG Lebensmittelhandel (München, Germany)

Details of the proceedings before OHIM

Proprietor of the trade mark at issue: Applicant

Trade mark at issue: Community figurative mark containing the word element ‘BASIC’– Community trade mark No 5 648 159

Procedure before OHIM: Proceedings for a declaration of invalidity

Contested decision: Decision of the First Board of Appeal of OHIM of 11 August 2015 in Case R 2384/2013-1

Form of order sought

The applicant claims that the Court should:

–    admit this writ of claim, with all the documents annexed, and the correspondent copies;

–    admit all the evidences attached to this writ;

annul the contested decision;

order the Applicant to bear the costs of the proceedings.

Plea(s) in law

The Board of appeal has incorrectly assessed the evidence submitted by Basic AG as to its genuine use of a company names “Basic AG” and “Basic” use in the course of trade in Germany;

The contested decision is incorrectly based on article 8(4) of Regulation No 207/2009, in relation to Article 53 (1) (c), as far as between the marks “basic” figuratives there is no likelihood of confusion. The term basic is lack of distinctiveness;

The exceptional protection of the German Trademark Law regarding non registered trade names has to be interpreted restrictively, according to Rome Treaty, 23 March 1957 and Community case law.

____________