29.1.2011 |
EN |
Official Journal of the European Union |
C 30/51 |
Action brought on 29 November 2010 — Omya v OHIM — Alpha Calcit (CALCIMATT)
(Case T-547/10)
()
2011/C 30/91
Language in which the application was lodged: German
Parties
Applicant: Omya AG (Oftringen, Switzerland) (represented by: F. Kuschmirek, lawyer)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Other party to the proceedings before the Board of Appeal of OHIM: Alpha Calcit Füllstoffgesellschaft mbH (Cologne, Germany)
Form of order sought
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Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 16 September 2010 in Case R 1370/2009-1, and order the defendant to register Community trade mark application No 5 200 654‘CALCIMATT’ for all the goods in respect of which application was sought; |
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order the defendant to pay the costs; |
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in the alternative, stay the proceedings until a final decision has been taken on whether OHIM is to remove the opposing mark EU 003513488 ‘CALCILAN’ from the register. |
Pleas in law and main arguments
Applicant for a Community trade mark: Omya AG.
Community trade mark concerned: Word mark ‘CALCIMATT’ for goods in Classes 1 and 2.
Proprietor of the mark or sign cited in the opposition proceedings: Alpha Calcit Füllstoffgesellschaft mbH.
Mark or sign cited in opposition: Internationally registered word marks ‘CALCIPLAST’, ‘CALCILIT’ and ‘CALCICELL’ for goods in Classes 1 and 19, Community word marks ‘Calcilit’ and ‘CALCILAN’ for goods in Classes 1 and 19, and national word works ‘CALCICELL’ and ‘CALCIPLAST’ for goods in Class 1.
Decision of the Opposition Division: Opposition rejected.
Decision of the Board of Appeal: Annulment of the decision of the Opposition Division and refusal to register.
Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, (1) since there is no likelihood of confusion between opposing marks as regards the goods in respect of which application was sought.
(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).