Action brought on 6 April 2009 - Nike International v OHIM - Muñoz Molina (R10)

(Case T -137/09)

Language in which the application was lodged: Spanish

Parties

Applicant: Nike International Ltd (Oregon, United States) (represented by: M. de Justo Bailey, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Aurelio Muñoz Molina (Santa Pola, Spain)

Form of order sought

Amend the contested decision with regard to the inadmissibility of the appeal, finding that that appeal is admissible, and order the Board of Appeal act in accordance therewith and examine the substance of the appeal;

In the alternative, find infringement by the Board of Appeal and the Opposition Division of Article 73 of Regulation No 40/94 and the other provisions applicable, ordering its retroactive application to the file to remedy the lack of opportunity of the applicant (Nike International Ltd) to correct the anomalies as assignee of the prior right and/or, at the very least, the correct notification of the Decision to the representative of the preceding proprietor (DL Sports & Marketing Ltda.).

Pleas in law and main arguments

Applicant for a Community trade mark: Aurelio Muñoz Molina.

Community trade mark concerned: Word mark 'R10' (application for registration No 4 813 713) for goods and services in Classes 18, 25 and 35.

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

Mark or sign cited in opposition: Unregistered Spanish mark 'R10'.

Decision of the Opposition Division: Rejection of the opposition on procedural grounds and, specifically, for infringement of the provisions of Article 58 of Council Regulation (EC) No 40/94 on the Community trade mark, ¹ and of Rule 49(1) of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark. ²

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

Pleas in law: Incorrect assessment of the conditions for admissibility of the appeal, breach of the duty to give reasons and breach of the right to a fair hearing.

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¹ - OJ 1994 L 11, p. 1.

² - OJ 1995 L 303, p. 1.