Action brought on 23 February 2012 - Duff Beer v OHIM - Twentieth Century Fox Film (Duff)

(Case T-87/12)

Language in which the application was lodged: German

Parties

Applicant: Duff Beer UG (Eschwege, Germany) (represented by: N. Schindler, lawyer)

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

Other party to the proceedings before the Board of Appeal: Twentieth Century Fox Film Corporation (Los Angeles, United States of America)

Form of order sought

The applicant claims that the Court should:

annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 12 December 2011 (Case R 0456/2011-4) and the decision of the Opposition Division of OHIM of 14 January 2011 (No B 1 603 771);

order OHIM to bear its own costs and to pay the costs incurred by the applicant;

in the alternative, stay the proceedings until the delivery of final decisions on the application for revocation pending before OHIM under the reference number 000005227 C and the nullity of Community trade mark No 001341130 declared by the Court of Commerce of Brussels under the reference numbers 2009/6122 and 2009/6129.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: the figurative mark 'Duff' in the colours black, white and red for goods and services in Classes 32, 35 and 41 (application No 8 351 091).

Proprietor of the mark or sign cited in the opposition proceedings: Twentieth Century Fox Film Corporation

Mark or sign cited in opposition: the figurative mark 'Duff BEER' (Community trade mark No 1 341 130) for goods in Class 32

Decision of the Opposition Division: the opposition was upheld in part for goods and services in Classes 32 and 35

Decision of the Board of Appeal: the appeal was dismissed

Pleas in law: Infringement of Article 8(2)(b) of Regulation No 207/2009 as there is no likelihood of confusion between the marks at issue and infringement of rule 20(7)(c) in conjunction with rule 50(1) of Regulation No 2868/95 due to the Board of Appeal's incorrect exercise of its discretion as regards the applicant's application to suspend the appeal proceedings.

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