Judgment of the General Court (Seventh Chamber) of 5 May 2011 – CheapFlights International v OHIM – Cheapflights (Cheapflights with a black aeroplane)

(Case T-461/09)

Community trade mark – Opposition proceedings – Application for the Community figurative mark Cheapflights with a black aeroplane – Earlier international figurative mark CheapFlights – Relative ground for refusal – Likelihood of confusion – Similarity of the signs – Article 8(1)(b) of Regulation (EC) No 207/2009

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 – Similarity of the marks concerned – Criteria for assessment – Complex mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 35-36)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 31 August 2009 (Case R 1607/2007-4), relating to opposition proceedings between CheapFlights International Ltd and Cheapflights Ltd.

Information relating to the case

Applicant for the Community trade mark:	Cheapflights Ltd
Community trade mark sought:	Figurative mark Cheapflights with a black aeroplane for services in Classes 38, 39 and 41 to 44
Proprietor of the mark or sign cited in the opposition proceedings:	CheapFlights International Ltd
Mark or sign cited in opposition:	Irish trade mark registration of the figurative sign in colour CheapFlights for services in Classes 35, 36, 38, 39 and 41 to 44; Irish trade mark application for the word mark CHEAPFLIGHTS for services in Classes 35, 39 and 43; Irish trade mark registration of the word mark CHEAPFLIGHTS for services in Classes 38, 41, 42 and 44; Irish trade mark registration of the figurative sign CheapFlights.ie for services in Classes 35, 39, 41 to 43; International trade mark registration of the figurative sign CheapFlights for services in Classes 35, 38, 39 and 42
Decision of the Opposition Division:	Opposition upheld in its entirety
Decision of the Board of Appeal:	Contested decision annulled; opposition dismissed in its entirety

Operative part

The Court:

1. Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 31 August 2009 (Case R 1607/2007-4);

2. Dismisses the action as to the remainder;

3. Orders OHIM and Cheapflights Ltd to pay the costs including those incurred by CheapFlights International Ltd in the proceedings before the Board of Appeal.