Action brought on 31 May 2010 - Kitzinger v OHIM - Mitteldeutscher Rundfunk, Zweites Deutsches Fernsehen (KICO)

(Case T-249/10)

Language in which the application was lodged: German

Parties

Applicant: Kitzinger & Co (GmbH & Co. KG) (Hamburg, Germany) (represented by: S. Kitzinger, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Mitteldeutscher Rundfunk (body governed by public law) (Leipzig, Germany), Zweites Deutsches Fernsehen (body governed by public law) (Mainz, Germany)

Form of order sought

annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 25 March 2010 in Case R 1388/2008-4 to the extent that the decision of the Opposition Division of 28 July 2008 on opposition No B 1 133 612 is annulled and the opposition rejected;

in the alternative, annul the contested decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 25 March 2010 in Case R 1388/2008-4;

order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Figurative mark in blue and grey colours, which contains the word element 'KICO' for goods and services in Classes 16, 36 and 39.

Proprietor of the mark or sign cited in the opposition proceedings: Mitteldeutscher Rundfunk (body governed by public law) and Zweites Deutsches Fernsehen (body governed by public law).

Mark or sign cited in opposition: Community word mark 'KIKA' for goods and services in Classes 8, 9, 11, 16, 18, 20, 21, 24, 25, 28, 29, 30, 32, 38 and 41 and German figurative mark in black and white colours which contains the word element 'KIKA' for goods and services in Classes 8, 9, 11, 16, 18, 20, 21, 24, 25, 28, 29, 30, 32, 38, 41 and 42.

Decision of the Opposition Division: Opposition upheld.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, ¹ because there is no likelihood of confusion between the marks at issue.

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¹ - Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).