Notice for the OJ

 

Action brought on 28 January 2004 by Plus Warenhandelsgesellschaft mbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-34/04)

Language of the case

to be determined pursuant to Article 131(2) of the Rules of Procedure

- language in which the application was submitted: German

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 28 January 2004 by Plus Warenhandelsgesellschaft mbH, Mülheim an der Ruhr (Germany), represented by B. Piepenbrink, lawyer.

Joachim Bälz and Friedmar Hiller, Stuttgart (Germany), were also parties to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

-    annul the decision of the Second Board of appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 25 November 2003 (Case R 620/2002-2) and cancel the registration of the mark "Turkish Power" sought in Application No 1 873 561;

-    order the Office to pay the costs.

Pleas in law and main arguments:

Applicant for Community trade mark:Joachim Bälz and Friedmar Hiller

Community trade mark sought:The figurative mark "Turkish power" for goods in Classes 3, 25, 28, 32, 33 and 34 (inter alia, tobacco, smokers' articles, matches) - Application No 1 873 561

Proprietor of mark or sign cited in the opposition proceedings:

The applicant (formerly Tengelmann Warenhandelsgesellschaft)

Mark or sign cited in opposition.The German word mark "POWER" for goods in Class 34 (inter alia, tobacco, smokers' articles, matches)

Decision of the Opposition Division:Rejection of the opposition

Decision of the Board of Appeal:Dismissal of the applicant's appeal

Pleas in law:The Board of Appeal erred in law in its application of Article 8(1)(b) of Regulation (EC) No 40/94.

Not only does the mark cited in opposition have, in itself, normal distinctive character but it has also been reinforced by extensive use as a mark.

There is a likelihood of confusion given that the distinctive components of the opposed marks are identical.

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