Official Journal of the European Union

C 37/24

Action brought on 26 November 2007 — Gebr. Heller Maschinenfabrik v OHIM — Fernández Martinez (HELLER)

(Case T-431/07)

(2008/C 37/38)

Language in which the application was lodged: German


Applicant: Gebr. Heller Maschinenfabrik (Nürtingen, Germany) (represented by: W. Kessler and S. Baur, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Manuel Fernández Martinez (Alicante, Spain)

Form of order sought

Annul the decision of the Second Board of Appeal of OHIM of 11 September 2007 in Case R 974/2006-2;

Dismiss the opposition of the other party before the Second Board of Appeal, Manuel Fernández Martinez;

Order the other party before the Board of Appeal, Manuel Fernández Martinez, to pay the costs and fees of the proceedings before the Opposition Division and the Board of Appeal of OHIM and of the present proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: The word mark ‘HELLER’ for goods and services in Classes 7, 37 and 40 (application No 3 306 602).

Proprietor of the mark or sign cited in the opposition proceedings: Manuel Fernández Martinez.

Mark or sign cited in opposition: Spanish figurative mark ‘HELLER’ for goods in Class 7 (No 2 520 584).

Decision of the Opposition Division: Upheld the opposition and rejected the application.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Breach of Article 8(1)(b) of Regulation (EC) No 40/94 (1), since there is no likelihood of confusion between the opposing marks.

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