Action brought on 29 July 2008 - Deutsche BKK v OHIM

(Case T-289/08)

Language in which the application was lodged: German

Parties

Applicant: Deutsche BKK (Wolfsburg, Germany) (represented by H.P. Schrammek, C. Drzymalla and S. Risthaus, acting as Agents)

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 the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 May 2008 in Case R 318/2008-4, notified on 2 June 2008;

Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark 'Deutsche BKK' for services in Classes 36, 41 and 44 (application No. 4 724 894).

Decision of the Examiner: Refusal of the application.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law:

Infringement of Article 73 of Regulation (EC) No 40/94 ¹ due to the rejection of documents without the possibility for prior comments;

Infringement of the first sentence of Article 74(1) of Regulation No 40/94 due to the Office's improper investigation of the facts;

Infringement of Article 7(1)(b) and (c) of Regulation No 40/94 due to denial of protection for the mark 'Deutsche BKK' because of absolute grounds for refusal of protection for the mark;

Infringement of Article 7(3) of Regulation No 40/94 due to refusal to recognise distinctive character in consequence of use.

____________

¹ - Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).