Action brought on 12 December 2008 - X-Technology Swiss v OHIM (representation of a sock)

(Case T-547/08)

Language in which the application was lodged: German

Parties

Applicant: X-Technology Swiss GmbH (represented by A. Herbertz and R. Jung, lawyers)

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

Form of order sought

annul the decision of the Fourth Board of Appeal of OHIM of 6 October 2008 in Case R 846/2008-4;

order OHIM to bear its own costs and pay those of the applicant.

Pleas in law and main arguments

Community trade mark concerned: Figurative trade mark as 'other mark - positional mark' of the colour 'orange (Pantone 16-1359 TPX)' for goods in Class 25 (application No 5 658 117).

Decision of the Examiner: Registration refused.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 7(1)(b) of Regulation (EC) No 40/94, ¹ since the trade mark applied for fulfils the minimum requirement as to distinctive character.

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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).