Action brought on 6 April 2006 - Demp Holding v OHIM - BAU HOW (BAUHOW)

(Case T-106/06)

Language in which the application was lodged: German

Parties

Applicant: Demp Holding B.V. (Maastricht, Netherlands) (represented by: R.-D. Härer, C. Schultze, J. Ossing and C. Weber, Rechtsanwälte)

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

Other party to the proceedings before the Board of Appeal of OHIM: BAU HOW GmbH (Hattersheim/Okriftel, Germany)

Form of order sought

Annul the decision of the Opposition Division of 28 November 2003 and the decision of the Fourth Board of Appeal of 31 January 2006 in Case R 92/2004-4;

allow the opposition and reject the application for the trade mark;

order the OHIM to pay all the costs i.e. the costs of the opposition proceedings, the proceedings before the Board of Appeal and the present proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: BAU HOW GmbH.

Community trade mark concerned: The figurative mark 'BAUHOW' for goods and services in Classes 7, 8, 11, 19, 20, 36, 37 and 40 (Application no. 1 740 133).

Proprietor of the mark or sign cited in the opposition proceedings: The applicant.

Mark or sign cited in opposition: The figurative mark 'BAUHAUS' as Benelux mark no. 570 351 and as international mark no. 646 757 for goods and services in Classes 1, 2, 6-9, 11, 12, 16, 17, 19-21, 25, 27, 31 and 40 and the Irish mark application no. 2000/03158.

Decision of the Opposition Division: Rejection of the opposition.

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

Pleas in law: Breach of the right to a fair hearing and breach of Article 8(1)(b) of Regulation (EC) No 40/94¹, as there is a likelihood of confusion between the opposing marks.

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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).