Action brought on 28 September 2010 - HerkuPlast Kubern v OHIM - How (eco-pack)
(Case T-445/10)
Language in which the application was lodged: German
Parties
Applicant: HerkuPlast Kubern GmbH (Ering, Germany) (represented by: G. Würtenberger and R. Kunze, lawyers)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Other party to the proceedings before the Board of Appeal of OHIM: Heidi A.T. How (Harrow, United Kingdom)
Form of order sought
Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 27 July 2010 in Case R 1014/2009-4;
order the defendant to pay the costs.
Pleas in law and main arguments
Applicant for a Community trade mark: Heidi A.T. How.
Community trade mark concerned: Figurative mark including the word element 'eco-pack', for goods in Class 16.
Proprietor of the mark or sign cited in the opposition proceedings: The applicant.
Mark or sign cited in opposition: German word mark and international registration 'ECOPAK' for goods in Class 20.
Decision of the Opposition Division: Opposition rejected.
Decision of the Board of Appeal: Appeal dismissed.
Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009
1 as there is a likelihood of confusion between the marks at issue, and infringement of Articles 75 and 76 of Regulation (EC) No 207/2009 in so far as the Board of Appeal dismissed altogether the existence of any likelihood of confusion, its reasoning is, at various points, inherently contradictory and it inappropriately rejected as irrelevant arguments submitted by the applicant that are in fact relevant.
____________1 - Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).