Action brought on 27 April 2006 - MIP METRO v OHIM - MetroRED Telecom (MetroRED)

(Case T-124/06)

Language in which the application was lodged: English

Parties

Applicant: MIP METRO Group Intellectual Property GmbH & Co KG (Düsseldorf, Germany) (represented by: R. Kaase, lawyer)

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

Other party to the proceedings before the Board of Appeal: MetroRED Telecom Group Ltd (Hamilton, Bermuda)

Form of order sought

Annul the Decision of the Second Board of Appeal of 16 February 2006 as far as the appeal has been dismissed on the grounds that it does not comply with Art 8(1)(b) of Regulation No 40/94;

order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: MetroRED Telecom Group Ltd.

Community trade mark concerned: The figurative mark "MetroRED" for services in classes 35, 38 and 42 - application No 2 189 512

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

Mark or sign cited: The national figurative mark "METRO" for goods and services in classes 1 to 36 and 38 to 42

Decision of the Opposition Division: Opposition partially rejected

Decision of the Board of Appeal: Appeal partially dismissed

Pleas in law: Violation of Article 8(1)(b) of Council Regulation No 40/94 as there is a likelihood of confusion since the mark "MetroRED" is dominated by the element "Metro" which is identical to the opposition mark. According to the applicant, the further element "RED" lacks any distinctiveness and will thus be disregarded by the consumer.

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