Action brought on 29 August 2008 - 2nine v OHIM - Pacific Sunwear of California (nollie)

(Case T-364/08)

Language in which the application was lodged: English

Parties

Applicant: 2nine Ltd (London, United Kingdom) (represented by: S. Palmer, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Pacific Sunwear of California, Inc. (Anaheim, United States)

Form of order sought

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 16 June 2008 in case R 1591/2007-2;

Order the defendant to pay the costs; and

Take any further action as the Court may deem appropriate.

Pleas in law and main arguments

Applicant for the Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark "nollie" for goods and services in classes 3, 9, 11, 14, 18, 20, 25 and 26 - application No 4 601 621

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

Mark or sign cited: International trade mark registration No 839 740 of the word mark "NOLI" for goods in classes 3, 18, 24 and 25; United Kingdom trade mark registration No 2 361 525 of the word mark "NOLI" for goods in classes 3, 18, 24 and 25.

Decision of the Opposition Division: Allowed the opposition and rejected the application in its entirety

Decision of the Board of Appeal: Partial annulment of the contested decision

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 as the Board of Appeal failed to find that there is a likelihood of confusion between the conflicting trade marks with respect to all the contested goods; infringement of Article 74(1) of Council Regulation No 40/94 as the Board of Appeal failed or neglected to take into account properly the facts, evidence and arguments submitted.

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