Action brought on 13 April 2007 — Last Minute Network v OHIM — Last Minute Tour (LAST MINUTE TOUR)

(Case T-115/07)

(2007/C 129/40)

Language in which the application was lodged: English

Parties

Applicant: Last Minute Network Ltd (London, United Kingdom) (represented by: P. Brownlow, solicitor)

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

Other party to the proceedings before the Board of Appeal: Last Minute Tour SpA (Milan, Italy)

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 ‘LAST MINUTE TOUR ’for products and services in classes 16, 39 and 42 — Community trade mark No 1 552 231

Proprietor of the Community trade mark: Last Minute Tour SpA

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 national non-registered word mark ‘LASTMINUTE.COM ’for services in classes 39 and 42

Decision of the Cancellation Division: Declaration of invalidity of the Community trade mark for the services in classes 39 and 42 and rejection of the request for a declaration of invalidity for the goods in class 16

Decision of the Board of Appeal: Dismissal of the appeal lodged by the applicant asking the partial annulment of the Cancellation Division's decision in order to obtain a declaration of invalidity also for the goods in class 16

Pleas in law: Infringement of Article 8(1)(b) and (4) of Council Regulation No 40/94 as the Board of Appeal wrongly decided that the applicant's non registered trade mark did not confer on him the right to prohibit the use in the United Kingdom of the trade mark applied for and as the Board of Appeal wrongly applied the test to establish likelihood of confusion.