(Case T-389/03)

Community trade mark – Opposition proceedings – Application for a figurative Community trade mark depicting a pelican – Earlier Community or national figurative trade mark Pelikan – Relative grounds for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) 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 – Likelihood of confusion with the earlier mark (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 96, 98, 102-103, 106)

Re:

ACTION brought against the decision of the Second Chamber of the Board of Appeal of OHIM of 18 September 2003 (Case R 191/2002-2) relating to opposition proceedings between Pelikan Vertriebsgesellschaft mbH & Co. KG and Dainichiseika Colour & Chemicals Mfg. Co. Ltd.

Information relating to the case

Applicant for the Community trade mark:

Community trade mark sought:

Figurative mark for goods in Classes 1, 2 and 17 – Application No 1005826

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

Pelikan Vertriebsgesellschaft mbH & Co. KG

Mark or sign cited in opposition:

Community or national figurative mark Pelikan

Decision of the Opposition Division:

Registration refused

Decision of the Board of Appeal:

Appeal dismissed

Operative part

The Court:

1.Dismisses the action;

2.Orders Dainichiseika Colour & Chemicals Mfg. Co. Ltd to pay the costs.