Action brought on 12 February 2008 - Axis AB v OHIM - Etra Investigación y Desarollo (ETRAX)

(Case T-70/08)

Language in which the application was lodged: English

Parties

Applicant: Axis AB (Lund, Sweden) (represented by: J. Norderyd, lawyer)

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

Other party to the proceedings before the Board of Appeal: Etra Investigación y Desarollo SA (Valencia, Spain)

Form of order sought

Annul the decision of the Second Board of Appeal of 27 November 2007 in Case R 334/2007-2;

order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The Community word mark "ETRAX" for goods and services in classes 9 and 42 - Application No 3 890 291

Proprietor of the mark or sign cited in the opposition proceedings: Etra Investigacion y Desarollo SA

Mark or sign cited: The national figurative marks containing the word element "ETRA" and the letters "I" and "D" joined by the sign "+" for goods and services in classes 9 and 42

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Upheld the appeal and annulled the contested decision

Pleas in law: Infringement of Rule 49 of Commission Regulation (EC) No 2868/95¹ ("CTMIR") and Article 8(1)(b) of Council Regulation (EC) No 40/94 ("CTMR").

The applicant claims that the Board of Appeal erred in finding that the appeal was filed in accordance with Rule 49(1) CTMIR which states that the Board of Appeal must reject an appeal as inadmissible if it doesn't comply with Articles 57, 58 and 59 CTMR and Rule 48(1)(c) CTMIR. Further, the applicant contends that since the language deficiency was not remedied by the opponent before the expiry of the time-limit set to lodge an appeal, namely, 12 February 2007, the Board of Appeal allegedly infringed Rule 49(1) and (2) CTMIR.

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¹ - Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ L 303, p. 1)