Action brought on 23 June 2008 — Ravensburger v OHIM — Educa Borras (EDUCA Memory game)

(Case T-243/08)

(2008/C 209/110)

Language in which the application was lodged: English

Parties

Applicant: Ravensburger AG (Ravensburg, Germany) (represented by: G. Würtenberger, lawyer, and R. Kunze, lawyer and Solicitor)

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

Other party to the proceedings before the Board of Appeal: Educa Borras SA (Sant Quirze del Valles, Barcelona, Spain)

Form of order sought

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The figurative mark ‘EDUCA Memory game’ for goods in class 28 — Community trade mark registration No 495 036

Proprietor of the Community trade mark: The other party to the proceedings before the Board of Appeal

Party requesting the declaration of invalidity of the Community trade mark: The applicant

Trade mark right of the party requesting the declaration of invalidity: The international word trade mark ‘MEMORY’ registration No R 393 512; the Benelux word trade mark ‘MEMORY’ registration No 38 328; the German word trade mark ‘MEMORY’ registration No 964 625

Decision of the Cancellation Division: Invalidity of the Community trade mark concerned

Decision of the Board of Appeal: Annulment of the decision of the Cancellation Division

Pleas in law: (i) infringement of Article 8(1) of Council Regulation No 40/94 as the Board of Appeal erred in concluding that the potentially colliding element in the Community trade mark concerned is of purely descriptive nature and thus cannot cause a risk of confusion with the applicant's earlier trade marks; (ii) infringement of Article 8(5) of Council Regulation No 40/94 as the Board of Appeal erred in requiring that applicant prove a risk of confusion; (iii) infringement of Article 74 of Council Regulation No 40/94 as the Board of Appeal did not properly take into account the labelling practice of the relevant market; (iv) infringement of Article 75 of Council Regulation No 40/94 as the Board of Appeal failed to convene a hearing, as requested by the applicant.