(Case T-363/08)

Community trade mark – Opposition proceedings – Application for the Community figurative mark nollie – Earlier national and international word marks NOLI – Relative ground for refusal – No similarity between the goods – No likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) – Article 74(1) of Regulation No 40/94 (now Article 76(1) of Regulation No 207/2009)

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 24, 43)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 16 June 2008 (Case R 1590/2007-2), relating to opposition proceedings between 2nine Ltd and Pacific Sunwear of California, Inc.

Information relating to the case

Applicant for the Community trade mark:

Pacific Sunwear of California, Inc.

Community trade mark sought:

Figurative mark nollie for goods and services in Classes 3, 9, 11, 14, 18, 20, 25 and 26 – application No 4602017

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

Mark or sign cited in opposition:

International trade mark registration No 839740 of the word mark NOLI for goods in Classes 3, 18, 24 and 25; United Kingdom trade mark registration No 2361525 of the word mark NOLI for goods in Classes 3, 18, 24 and 25

Decision of the Opposition Division:

Opposition upheld; trade mark application refused

Decision of the Board of Appeal:

Contested decision partially annulled

Operative part

The Court:

1.Dismisses the action;

2.Orders 2nine Ltd to bear its own costs and to pay those incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).