Official Journal of the European Union

C 155/24

(Case T-118/07)

(2007/C 155/49)

Language in which the application was lodged: Portuguese

Parties

Applicant: P.P.TV — Publicidade de Portugal e Televisão, SA (Lisbon, Portugal), (represented by: I. de Carvalho Simões and J. Conceição Pimenta, 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: RENTRAK Corp.

Form of order sought

—annulment of Decision No R. 1040/2005-1 of 7 February 2007 of the First Board of Appeal of the Office for Harmonisation in the Internal Market (‘the Office’) (related case: Decision No 2254/2005 of 28 June 2005 of the Opposition Division of the Office)

—an order that the Office should, in consequence, refuse to register Community trade mark No 1758382 in relation to all the services listed;

—an order that the intervener should pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: RENTRAK Corp.

Community trade mark concerned: Word mark PPT (Services for the distribution of video-cassettes on the basis of shared revenue or payment for use; rental of videos and DVDs; rental of video-recorders and DVD players; distribution of videotapes; on-line rental of videos, DVDs, video-recorders and DVD players by means of the world wide information net, Class 41)

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

Mark or sign cited in opposition: Portuguese national trade mark No 330 375, presenting the verbal element ‘PPTV’ (services relating to ‘Education; providing of training; entertainment; sporting and cultural activities’ within Class 41).

Decision of the Opposition Division: Upholding of the opposition and rejection of the application for registration of a Community trade mark

Decision of the Board of Appeal: Annulment of the Opposition Division's decision and rejection of the opposition

Pleas in law:

Similarity of services: the Board of Appeal's interpretation to the effect that the services relating to the trade mark at issue, being distribution services only, are not directed at the same consumers, so that they have no connection whatsoever with the services provided by the applicant, is too restrictive.

Graphic similarity and likelihood of confusion: The three first letters of each of the two distinctive signs are exactly the same. Neither of the trade marks has any immediate meaning for Portuguese consumers, so that they will be taken to be fanciful signs and therefore to be original.

The likelihood of confusion includes the risk of association.

Even if Portuguese consumers did succeed in distinguishing the marks, it is not inconceivable that they would ascribe to them the same origin or believe that there were commercial, economic or organisational relations between the proprietor undertakings, which might constitute unfair competition even if that were not the intention of the applicant for registration of the trade mark at issue.