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Case T-427/07: Action brought on 16 November 2007 — Mirto Corporación Empresarial v OHIM — Maglificio Barbara (Mirtillino)
ECLI:EU:UNKNOWN:62007TN0427
62007TN0427
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26.1.2008
EN
Official Journal of the European Union
C 22/47
(Case T-427/07)
(2008/C 22/89)
Language in which the application was lodged: Spanish
Parties
Applicant: Mirto Corporación Empresarial, S.L. (Madrid, Spain) (represented by: E. Armijo Chávarri, 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: Maglificio Barbara Srl
Form of order sought
—Annul the Decision of the Second Board of Appeal of OHIM of 28 August 2007 in Case R 875/2006-2 and order expressly that OHIM pay the costs.
Pleas in law and main arguments
Applicant for a Community trade mark: Maglificio Barbara Srl
Community trade mark concerned: Figurative mark ‘Mirtillino’ for goods in Classes 3, 18 and 25 (application No 3 252 467)
Proprietor of the mark or sign cited in the opposition proceedings: Creaciones Mirto, S.A.; the applicant following transfer of the marks at issue in the opposition proceedings.
Mark or sign cited in opposition: Word mark ‘MIRTO’ (Community trade mark No 1 653 351) for goods in Classes 3, 18 and 25 and a number of other national word and figurative marks ‘MIRTO’.
Decision of the Opposition Division: Partly upheld the opposition.
Decision of the Board of Appeal: Annulment of the decision under appeal and dismissal of the opposition.
Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 (1) since there is a likelihood of confusion between the conflicting marks.
(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).