Notice for the OJ

 

Action brought on 14 April 2003 by Reckitt Benckiser (España), S.L. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

    (Case T-126/03)

    Language of the case: English

[Language of the case

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

- language in which the application was submitted: English]

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of First Instance of the European Communities on 14 April 2003 by Reckitt Benkiser (España), S.L., Barcelona, Spain represented by Ms Monica Esteve Sanz, lawyer,

ALADIN Gesellschaft für innovative mikrobiologische Systeme GmbH was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

- Declare that the decision of the First Board of Appeals of 31 January 2003 rendered in case 389/2002-1, has infringed Article 4, paragraphs 2 and 3 and/or article 8 paragraph 1, letter b) of Regulation 40/94¹

- Consequently, altering this decision, declare the dismissal of registration of community trade mark application no. 397.323 ALADIN (word), or - eventually - order the devolution of the case to the First Board of Appeal.

listnum "WP List 1" \l 1order the defendant and if the case might be, the intervener to pay all the costs of these proceedings and the costs of the opposition and appeal incurred within the OHIM.

                                

Pleas in law and main arguments:

Applicant for Community trade mark::ALADIN Gesellschaft für innovative mikrobiologische Systeme GmbH.

Community trade mark concerned:Word mark "ALADIN", for certain goods in classes 1, 3, 35, 37 and 42 (application No 397323)

Proprietor of mark or sign cited in the

opposition proceedings:RECKITT BENCKISER (ESPAÑA), S.L.

Mark or sign cited in opposition:National mark "ALADDIN" for certain goods ("polish for metals") in Class 3

Decision of the Opposition Division:Opposition rejected.

Decision of the Board of Appeal:Opponent's appeal dismissed.

Pleas in law:Misapplication of Article 43 paragraphs 2 and 3 and Article 8 paragraph 1 b) of Regulation 40/941. The applicant challenges the Board of Appeal's ruling that the applicant's trade mark, cited in opposition, had only been used for one particular category of goods ("cotton impregnated with a metal polishing agent for household use") and that, given that use, there was no likelihood of confusion between the two marks. According to the applicant this is not a case where the earlier mark has been used in relation to only part of the goods for which it is registered. The applicant asserts that the earlier mark had been registered for "polish for metals" and that "impregnated cotton with a polishing agent" is, in fact, "polish for metals", meaning that the earlier mark had been used for all the products for which it was registered.

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¹ - Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 11, p. 1)