Judgment of the General Court (Sixth Chamber) of 13 September 2010 – Travel Service v OHIM – Eurowings Luftverkehrs (smartWings)

(Case T-72/08)

Community trade mark – Opposition proceedings – Application for the Community figurative mark smartWings – Earlier national and international word and figurative marks EUROWINGS and EuroWings – Relative ground for refusal – Likelihood of confusion – Similarity of the signs – Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) – Duty to state reasons – Article 73 of Regulation No 40/94 (now Article 75 of Regulation No 207/2009) – Article 79 of Regulation No 40/94 (now Article 83 of Regulation No 207/2009)

1.                     Community trade mark – Definition and acquisition of the Community trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Likelihood of confusion with the earlier mark (Council Regulation No 40/94, Art. 8(1)(b)) (see para. 45)

2.                     Community trade mark – Definition and acquisition of the Community trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Likelihood of confusion with the earlier mark (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 53, 62)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 21 November 2007 (Case R 1515/2006-2), relating to opposition proceedings between Eurowings Luftverkehrs AG and Travel Service a.s.

Information relating to the case

Applicant for the Community trade mark:

Travel Service, a.s.

Community trade mark sought:

Figurative Community trade mark smartWings for goods and services in Classes 16, 21, 37, 39, 41 and 43 – Application No 3650595

Proprietor of the mark or sign cited in the opposition proceedings:

Eurowings Luftverkehrs AG

Mark or sign cited in opposition:

National and international word mark EuroWings for goods and services in Classes 16 and 41, the national and international word mark EUROWINGS for goods and services in Classes 39 and 42 and the national word mark WINGSGLASS for goods and services in Classes 16, 39, 41 and 42

Decision of the Opposition Division:

Opposition partially upheld

Decision of the Board of Appeal:

Appeal dismissed


Operative part

The Court:

1.

Dismisses the action;

2.

Orders Travel Service a.s. to pay, in addition to its own costs, the costs of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Eurowings Luftverkehrs AG.