Action brought on 22 March 2011 - Hesse v OHIM - Porsche (Carrera)

(Case T -173/11)

Language in which the application was lodged: German

Parties

Applicant: Kurt Hesse (Nuremberg, Germany) (represented by: M. Krogmann, lawyer)

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

Other party to the proceedings before the Board of Appeal: Dr. Ing. h.c. F. Porsche AG (Stuttgart, Germany)

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 11 January 2011 in Case R 306/2010-4 and reject the opposition against Community trade mark application No 5 723 432 of 16 February 2007;

In the alternative,

(a) annul the contested decision in so far as it declares that the goods are similar or that unfair advantage is taken of the distinctive character or repute of goods covered by the marks cited in opposition by goods or related services covered by the mark applied for, which are designed to be fitted both inside and outside of mechanical motor vehicles as motor vehicle accessories and come from different markets;

(b) annul the contested decision in so far as it declares that the goods are similar or that unfair advantage is taken of the distinctive character or repute of goods covered by the marks cited in opposition by goods or related services covered by the mark applied for, which due to their nature (electronic equipment as opposed to mechanical motor vehicles), intended purpose (entertainment, listening to music, traffic news) or use exhibit no relevant points of reference to the goods and may not be regarded as complementary (goods between which there is no connection in the sense that goods covered by the mark applied for are essential or important for the use of the marks cited in opposition) and are used entirely independently of each other;

(c) annul the contested decision in so far as it declares that the goods are similar or that unfair advantage is taken of distinctive character or repute in relation to electrical or electronic equipment and apparatus and installations composed of that equipment and apparatus (for example navigation apparatus) in Class 9 or related services, which can be used in the same way in particular to accessorise motor vehicles of any design and origin and come from different markets;

Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: the word mark 'Carrera' for goods in Class 9

Proprietor of the mark or sign cited in the opposition proceedings: Dr. Ing. h.c. F. Porsche AG

Mark or sign cited in opposition: the national and Community word mark 'CARRERA' for goods in Class 12

Decision of the Opposition Division: the opposition was rejected

Decision of the Board of Appeal: the appeal was granted and the application was rejected

Pleas in law: Infringement of Article 8(1)(b) and Article 8(5) of Regulation (EC) No 207/2009 ¹ as there is no likelihood of confusion between the marks at issue and no unfair advantage is taken of the distinctive character of the marks cited in opposition

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¹ - Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).