Judgment of the General Court of 26 September 2014 — Koscher + Würtz v OHIM — Kirchner & Wilhelm (KW SURGICAL INSTRUMENTS)
(Case T-445/12) 1
(Community trade mark — Opposition proceedings — International registration designating the European Community — Figurative mark KW SURGICAL INSTRUMENTS — Earlier national word mark Ka We — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Appeal procedure — Scope of the examination to be carried out by the Board of Appeal — Proof of genuine use of the earlier trade mark — Application submitted to the Opposition Division — Refusal to register the trade mark applied for without prior examination of the condition of genuine use of the earlier trade mark — Error of law — Power to alter decisions)
Language of the case: German
Parties
Applicant: Koscher + Würtz GmbH (Spaichingen, Germany) (represented by: P. Mes, C. Graf von der Groeben, G. Rother, J. Bühling, A. Verhauwen, J. Künzel, D. Jestaedt, M Bergermann, J. Vogtmeier and A. Kramer, lawyers)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Schifko, acting as Agent)
Other party to the proceedings before the Board of Appeal of OHIM: Kirchner & Wilhelm GmbH + Co. (Asperg, Germany) (represented by: J. Dönch, lawyer)
Re:
Action brought against the decision of the Fourth Board of Appeal of OHIM of 6 August 2012 (Case R 1675/2011-4) concerning opposition proceedings between Kirchner & Wilhelm GmbH + Co. and Koscher + Würtz GmbH.
Operative part of the judgment
The Court:
1. Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 6 August 2012 (Case R 1675/2011-4) concerning opposition proceedings between Kirchner & Wilhelm GmbH + Co. and Koscher + Würtz GmbH;
2. Dismisses the action as to the remainder;
3. Orders OHIM to bear its own costs and to pay half of the costs incurred by Koscher + Würtz in the proceedings before the Board of Appeal and the General Court;
4. Orders Koscher + Würtz to bear half of the costs it has incurred in the proceedings before the Board of Appeal and the General Court.
________________________1 OJ C 379, 8.12.2012.