(Case T-427/07)

Community trade mark – Opposition proceedings – Application for Community figurative mark Mirtillino – Earlier Community word mark MIRTO – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) 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 40‑42, 81)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 29 August 2007 (Case R 875/2006-2), relating to opposition proceedings between Creaciones Mirto SA and Maglificio Barbara Srl.

Information relating to the case

Applicant for the Community trade mark:

Maglificio Barbara Srl

Community trade mark sought:

Figurative mark Mirtillino for goods in Classes 3, 18 and 25 – application No 3252467

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

Creaciones Mirto, SA; 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 1653351) for goods in Classes 3, 18 and 25 and various other national word and figurative marks MIRTO

Decision of the Opposition Division:

Opposition partly upheld

Decision of the Board of Appeal:

Annulment of the decision under appeal and dismissal of the opposition

Operative part

The Court:

1.Dismisses the action;

2.Orders Mirto Corporación Empresarial, SL to pay the costs.