Action brought on 25 January 2010 - Alibaba Group v OHIM - allpay.net (ALIPAY)

(Case T-26/10)

Language in which the application was lodged: English

Parties

Applicant: Alibaba Group Holding Limited (Grand Cayman, Cayman Islands) (represented by: M. Graf, lawyer)

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

Other party to the proceedings before the Board of Appeal: allpay.net.Limited (Hereford, United Kingdom)

Form of order sought

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 5 November 2009 in case R 1790/2008-1, as far as the appeal was dismissed; and

Order the defendant to bear the costs of the proceedings.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark "ALIPAY", for goods and services in classes 9, 35, 36, 38 and 42

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

Mark or sign cited: Community trade mark registration of the word mark "ALLPAY", for goods and services in classes 9, 36, 40 and 42; United Kingdom trade mark registration of the word mark "ALLPAY.NET", for goods and services in classes 9, 16, 36, 38 and 42; United Kingdom trade mark registration of a series of word marks containing the word "ALLPAY", for goods and services in classes 9, 36, 40 and 42; unregistered earlier marks or signs containing the word "ALLPAY", used in the course of trade in the United Kingdom

Decision of the Opposition Division: Upheld the opposition for all the contested goods and services

Decision of the Board of Appeal: Dismissed the appeal partially

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 (which became Article 8(1)(b) of Council Regulation No 207/2009) as the Board of Appeal wrongly found that there was likelihood of confusion between the trade marks concerned.

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