C_2009297EN.01003202.xml

5.12.2009

Official Journal of the European Union

C 297/32

Action brought on 14 October 2009 — New Yorker SHK Jeans v OHIM — Vallis K — Vallis A (FISHBONE)

(Case T-415/09)

2009/C 297/49

Language in which the application was lodged: English

Parties

Applicant: New Yorker SHK Jeans GmbH (Braunschweig, Germany) (represented by: A. Gaul, T. Golda, S. Kirschstein-Freund and V. Spitz lawyers)

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

Other party to the proceedings before the Board of Appeal: Vallis K — Vallis A & Co. OE (Athens, Greece)

Form of order sought

—	Amend the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 July 2009 in case R 1051/2008-1 and rule that the appeal is justified and the opposition is rejected for goods in class 25;

—	Alternatively, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 July 2009 in case R 1051/2008-1 in so far as the appeal is dismissed and the rejection of the application for goods in class 25 is confirmed;

—	Order the defendant to pay the costs, including those incurred by the applicant before the Board of Appeal.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark “FISHBONE” for goods in classes 18 and 25

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

Mark or sign cited: Greek trade mark registration of the mark “FISHBONE BEACHWEAR” for goods in class 25; earlier sign “Fishbone” (word and device) used in the course of trade in Greece for “garments in general, footwear, and headgear”

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Allowed the appeal in part and dismissed the appeal for the reminder

Pleas in law: Infringement of Articles 43(2) and 74(2) of Council Regulation No 40/94 (which became Articles 42(2) and 76(2) of Council Regulation No 207/2009), as well as of Rule 22(2) of Commission Regulation No 2868/95 (1) as the Board of Appeal wrongly concluded that it was entitled to take into account the catalogues submitted on 15 January 2007; infringement of Article 73 of Council Regulation No 40/94 (which became Article 75 of Council Regulation No 207/2009) as the Board of Appeal did not state the reasons for taking into account the catalogues submitted on 15 January 2007; infringement of Articles 43(2) and (5), as well as 15(1) and (2)(a) of Council Regulation No 40/94 (which became Articles 42(2), (5) and 15(1), first and second subparagraph, point a of Council Regulation No 207/2009) as the Board of Appeal wrongly stated that the genuine use of the opposition mark was shown; infringement of Article 8(1)(b) of Council Regulation No 40/94 (which became Article 8(1)(b) of Council Regulation No 207/2009) as the Board of Appeal wrongly assumed that there was a likelihood of confusion between the trade marks concerned.

(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).