Notice for the OJ

 

Action brought on 11 October 2002 by H.O. Sports Company, Inc. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

    (Case T-318/02)

    Language of the case: English

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 11 October 2002 by H.O. Sports Company, Inc., Redmond, Washington, U.S.A., represented by Mr Fabrizio Jacobacci, lawyer.

The applicant claims that the Court should:

listnum "WP List 1" \l 1amend the decision of 17 July 2002 (File No. R 140/2002-3) of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) and allow the Community Trade Mark Application to proceed to registration in connection with the following goods:

listnum "WP List 3" \l 2"backpacks; travel bags; duffel bags for practice of wakeboard" in international class 18;

listnum "WP List 4" \l 2"sportswear, jackets; T-shirts, sweatshirts, polo shirts, volley shorts, training shorts and short pants; swimming suits; hats; wet suits; wet suit boots; dry suits; water ski boots; water ski vests, water ski gloves; spray legs, all meant to be used for the practice of wakeboard" in international class 25;

listnum "WP List 5" \l 1    "water sport tow ropes, water sport tow handles; water sport tow floats; inflatable tubes for recreational use in water; towable water toys designed to carry a rider; wake boards; wake board bindings; wake board fins; water skis; trick water skis; jump skis; water ski bindings; adjustable ski fins; water ski boat tow harnesses; water ski gloves; knee boards; water sport boards; water sport gear bags; water ski, wakeboard and knee board bags; water sport goods; dampers for use with water skis; wake boards to limit vibration and adjust flex, all meant to be used for the practice of wakeboard" in international class 28.

listnum "WP List 7" \l 1order the defendant to pay the costs, fees and disbursements of this case and of the previous proceedings and appeals before OHIM Examination Division and the Third Board of Appeal respectively.

Pleas in law and main arguments:

The trade mark concerned:The word mark "HYPERLITE" ( application No 997122

Goods or service concerned:Goods in classes 18, 25 and 28

Decision contested before the

Board of Appeal:Refusal of registration by the examiner

Decision of the Board of Appeal:Annulment of the decision of the examiner in so far as it rejects registration of the application for 'wakeboards, wakeboard bindings; wakeboard fins; wakeboard bags; dampers for use with wake boards to limit vibration and adjust flex', all in class 28, and dismissal of the appeal for the remainder.

Grounds of claim:The decision is contradictory in that although the Board of Appeal recognises that all the different observations and documents filed by the H.O. Sports, Inc. in their entirety constantly refer to the particular market of wakeboard, it sustains that acquired distinctiveness under Article 7 (3) of Regulation No. 40/94¹ has been established for certain goods only.

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¹ - Council Regulation (EC) No 40/94 of 20.12.1993 on the Community trade mark (OJ L 11, p. 1).