26.4.2008   

EN

Official Journal of the European Union

C 107/37

Action brought on 20 February 2008 — KUKA Roboter v OHIM (colour mark orange)

(Case T-97/08)

(2008/C 107/63)

Language in which the application was lodged: German

Parties

Applicant: KUKA Roboter GmbH (Augsburg, Germany) (represented by A. Kohn, lawyer)

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

Form of order sought

The applicant claims that the Court should:

—

annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 14 December 2007 in Case R 1572/2007-4;

—

order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The contourless colour mark orange for goods in Class 7 (Application No 4 607 801)

Decision of the Examiner: Rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law:

—

Infringement of Article 28 EC as the contested decision constitutes a measure having equivalent effect to a quantitative restriction on imports

—

Infringement of Article 7(1)(b) of Regulation (EC) No 40/94 (1), as the mark applied for has distinctive character

—

Infringement of Articles 73 and 74 of Regulation No 40/94 as there is no or an insufficient statement of reasons for the contested decision and the facts have not been examined sufficiently

—

Misuse of powers as the defendant took extraneous considerations into account in its statement of reasons for the contested decision in respect of the requirement of availability.

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