Action brought on 21 July 2008 - Fidelio KG v OHIM

(Case T-286/08)

Language in which the application was lodged: German

Parties

Applicant: Fidelio KG (Linz, Austria) (represented by M. Gail, acting as Agent)

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

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 21 May 2008 (case R 632/2007-4);

Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay its own costs as well as those of the applicant.

Pleas in law and main arguments

Community trade mark concerned: The word mark 'Hallux' for goods in Classes 10, 18 and 25 (Application No 5 245 147).

Decision of the Examiner: Partial refusal of the application.

Decision of the Board of Appeal: Appeal partially upheld.

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation (EC) No 40/94,¹ as the registered marks concerning the goods 'orthopaedic article' and 'footwear' do not present any absolute grounds for refusal.

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¹ - Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p.1).