(Case T-434/05)

Community trade mark – Opposition proceedings – Application for the Community word mark ACTIVY Media Gateway – Earlier Community and national word and figurative marks Gateway and GATEWAY – Relative grounds for refusal – No likelihood of confusion – Absence of similarity between the signs – Article 8(1)(b) of Regulation (EC) No 40/94 – Article 8(5) of Regulation No 40/94

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 (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 50-51)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 14 September 2005 (Case R 1068/2004‑1), relating to opposition proceedings between Fujitsu Siemens Computers GmbH and Gateway, Inc.

Information relating to the case

Applicant for the Community trade mark:

Fujitsu Siemens Computers GmbH

Community trade mark sought:

Word mark ACTIVY Media Gateway for goods and services in Classes 9, 35, 38 and 42 – Application No 2190627

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

Mark or sign cited in opposition:

Community and national word marks and figurative marks GATEWAY, GATEWAY 2000, GATEWAY.NET, GATEWAY PROFILE and GATEWAY ASTRO, for goods and services in Classes 9, 16, 35, 36, 37 and 38

Decision of the Opposition Division:

Opposition dismissed

Decision of the Board of Appeal:

Appeal dismissed

Operative part

The Court:

1.Dismisses the action;

2.Orders Gateway, Inc., to bear its own costs and to pay those of the Office for Harmonisation in the Internal Market (Trade Marks and Designs).