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22.4.2006 |
EN |
Official Journal of the European Union |
C 96/14 |
Action brought on 14 December 2005 — Daishowa Seiki v OHIM
(Case T-438/05)
(2006/C 96/27)
Language in which the application was lodged: German
Parties
Applicant: Daishowa Seiki Co. Ltd (Osaka, Japan) (represented by: T. Krüger, lawyer)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Other party to the proceedings before the Board of Appeal of OHIM: Tengelmann Warenhandelsgesellschaft KG (Mülheim, Germany)
Form of order sought
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Annul Decision R928/2004-1 of the First Board of Appeal for the Office for Harmonisation in the Internal Market (Trade Marks and Designs), made on 7 September 2005; |
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order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs of this action and of the objection proceedings R928/2004-1. |
Pleas in law and main arguments
Applicant for a Community trade mark: Daishowa Seiki Co. Ltd
Community trade mark concerned: figurative mark ‘BIG PLUS’ for goods in Class 7 (Metal machine tools, parts and tool holders) Application no. 1 073 964
Proprietor of the mark or sign cited in the opposition proceedings: Tengelmann Warenhandelsgesellschaft KG
Mark or sign cited in opposition: The national figurative mark ‘Plus’ for goods, inter alia in Classes 6 and 8
Decision of the Opposition Division: Rejection of the opposition
Decision of the Board of Appeal: Setting aside of the decision of the Opposition Division
Pleas in law: Infringement of Article 8(1)(b) of EC Regulation No. 40/94, as there is no risk of confusion between the opposing trade marks, (i) due to the lack of similarity of the goods and trade marks, and (ii) because the distinctive character of the opposing trademark is limited to the graphical design.