Action brought on 10 November 2008 - adidas v OHIM - Patrick Holding (Representation of a shoe with two stripes)

(Case T-479/08)

Language in which the application was lodged: English

Parties

Applicant: adidas AG (Herzogenaurach, Germany) (represented by: V. von Bomhard, A. Renck lawyers and I. Fowler, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Patrick Holding ApS (Fredensborg, Denmark)

Form of order sought

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 27 August 2008 in case R 849/2007-2; and

Order the defendant to bear the costs, or, in the event that the other party to the proceedings before the Board of Appeal intervenes on the side of the defendant, order both parties to bear jointly the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark representing a shoe with two stripes, for goods in classes 18, 25 and 28.

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

Mark or sign cited: German trade mark registration No 39 950 559 of the figurative mark representing a shoe with three stripes for goods in class 25; German trade mark registration No 944 623 of the figurative mark representing a shoe with three stripes for goods in class 25; German trade mark registration No 944 624 of the figurative mark representing a shoe with three stripes for goods in class 25; German trade mark registration No 897 134 of the figurative mark representing a shoe with three stripes for goods in class 25; German designation of the international trade mark registration No 391 692 of the figurative mark representing a shoe with three stripes for goods in class 25; German designation of the international trade mark registration No 414 034 of the figurative mark representing three stripes for goods in class 25; German designation of the international trade mark registration No 414 035 of the figurative mark representing three stripes for goods in class 25; German designation of the international trade mark registration No 414 036 of the figurative mark representing three stripes for goods in class 25; German designation of the international trade mark registration No 414 037 of the figurative mark representing three stripes for goods in class 25.

Decision of the Opposition Division: Upheld the opposition and rejected the Community trade mark concerned in its entirety

Decision of the Board of Appeal: Annulled the decision of the Opposition Division

Pleas in law: Infringement of Rules 16(3), 17(2) and 20(2) of Commission Regulation No 2868/95¹, thereby also infringing Article 8(1)(b) of Council Regulation 40/94, as the Board of Appeal erred in its finding that the applicant did not fulfil the translation requirement and thereby did not properly substantiate the validity, existence and scope of the earlier trade marks invoked, in particular of German trade mark registration No 39 950 559.

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¹ - Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).