15.8.2009   

EN

Official Journal of the European Union

C 193/8

Appeal brought on 1 June 2009 by Kaul GmbH against the judgment of the Court of First Instance (Fifth Chamber) delivered on 25 March 2009 in Case T-402/07: Kaul GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) — Bayer AG

(Case C-193/09 P)

2009/C 193/08

Language of the case: English

Parties

Appellant: Kaul GmbH (represented by: R. Kunze, Rechtsanwalt and Solicitor, G. Würtenberger, Rechtsanwalt)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Bayer AG

Form of order sought

The appellant requests that:

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the judgment of the Court of First Instance of the European Communities of 25 March 2009 in Case T-402/07 Kaul GmbH v OHIM — Bayer (the judgment under appeal), by which that court dismissed the action brought against the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trademarks & Designs) (OHIM) of 1 August 2007 upholding the decision of the Opposition Division, by which the opposition directed against Community trademark application no. 000 195 370‘ACRCOL’ was rejected, be set aside;

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following the conclusion of the written proceedings, an oral hearing before the Court of Justice be scheduled;

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the Defendant pay the costs of the proceedings.

Pleas in law and main arguments

The appellant submits that the Court of First Instance's decision constitutes an infringement of the pertinent provisions of Regulation EC 40/94 (1) and, moreover, is in breach of fundamental procedural principles. Hence, the appeal directed against the decision issued by the Court of First Instance dated 25 March 2009 is well founded on the ground that

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the Court of First Instance has incorrectly interpreted Article 74(2) Community Trademark Regulation 40/94/EC, and hence was in breach of said provision when issuing the judgment under appeal;

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the Court of First Instance in the judgment under appeal, according to which an infringement of the right to be heard was immaterial for the outcome of the proceedings, is flawed and in breach of Article 61(2) and Article 73 of Community Trademark Regulation 40/94/EC, AND

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the Court of Justice was incorrect in upholding the Board of Appeal's assessment pertaining to the criteria of likelihood of confusion pursuant to Article 8(1)(b) Community Trademark Regulation 40/94/EC.

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