Judgment of the General Court (Fourth Chamber) of 7 July 2010 – mPAY24 v OHIM – Ultra (M PAY)

(Case T-557/08)

Community trade mark – Opposition proceedings – Application for Community figurative mark M PAY – Earlier Community and national word marks MPAY24 – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 40/94 (now 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 – Likelihood of confusion with the earlier mark (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 36, 39, 42-45)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 30 September 2008 (Case R 221/2007‑1) relating to opposition proceedings between mPAY24 GmbH and Ultra d.o.o. Proizvodnja elektronskih naprav.

Information relating to the case

Applicant for the Community trade mark:	Ultra d.o.o. Proizvodnja elektronskih naprav
Community trade mark sought:	Figurative mark MPAY for goods and services in Classes 9, 35 to 38 and 42 – Application No 3587896
Proprietor of the mark or sign cited in the opposition proceedings:	mPAY24 GmbH
Mark or sign cited in opposition:	Community trade mark registration No 2061656 of the word mark MPAY24 for goods and services in Classes 9, 16, 35, 36 and 38; Austrian trade mark registration No 200373 of the word mark MPAY24 for goods and services in Classes 9, 16, 35, 36 and 38
Decision of the Opposition Division:	Trade mark application dismissed in its entirety
Decision of the Board of Appeal:	Appeal dismissed in part

Operative part

The Court:

1. Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 30 September 2008 (Case R 221/2007‑1) in so far as that decision dismissed the opposition brought by mPAY24 GmbH;

2. Orders OHIM to pay the costs.