12.9.2009

EN

Official Journal of the European Union

C 220/39

(Case T - 279/09)

2009/C 220/83

Language in which the application was lodged: Italian

Parties

Applicant: Antonio Aiello (Vico Equense, Italy) (represented by: M. Coccia and L. Pardo, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal of OHIM: Cantoni ITC SpA (Milan, Italy)

Form of order sought

—Annul the decision of the First Board of Appeal of OHIM of 2 April 2009, notified by fax on 14 May 2009, in case R 1148/2008-1 between Antonio Aiello and Cantoni ITC SpA and, by way of correction, reject opposition B 856 163 to the registration of the trade mark ‘100 % CAPRI’ for goods in Classes 3, 18 and 25 (No 003563848).

—Order the defendant to pay all the costs of the proceedings before the Court of First Instance of the European Communities.

Pleas in law and main arguments

Applicant for a Community trade mark: Antonio Aiello

Community trade mark concerned: Figurative mark composed of the word and number elements ‘100 % Capri’ (registration application No 3 563 848) for goods in Classes 3, 18 and 25.

Proprietor of the mark or sign cited in the opposition proceedings: CANTONI L.T.C. S.p.A.

Mark or sign cited in opposition: Community figurative mark (registration application No 2 689 891) and national figurative mark composed of the word element ‘CAPRI’ for goods in Classes 3, 18 and 25.

Decision of the Opposition Division: Upheld the opposition and rejected the application for registration for all the contested goods.

Decision of the Board of Appeal: Dismissed the appeal.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 on the Community trade mark and Articles 50(1) and 20(2) of Regulation (EC) No 2868/95 implementing Regulation (EC) No 40/94 on the Community trade mark (replaced by Regulation No 207/2009).