Action brought on 18 December 2008 - mPAY24 v OHIM - Ultra (MPAY)

(Case T-557/08)

Language in which the application was lodged: English

Parties

Applicant: mPAY24 GmbH (Vienna, Austria) (represented by: H. Z. Zeiner, lawyer)

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

Other party to the proceedings before the Board of Appeal: Ultra d.o.o. Proizvodnja elektronskih naprav (Zagorje ob Savi, Slovenia)

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 30 September 2008 in case R 221/2007-1 to the extent that the opposition filed by the applicant has been rejected; and

Order the defendant and the other party to the proceedings before the Board of Appeal to pay the costs.

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 "MPAY", for goods and services in classes 9, 35, 36, 37, 38 and 42 - application No 3 587 896

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

Mark or sign cited: Community trade mark registration No 2 061 656 of the word mark "MPAY24" for goods and services in classes 9, 16, 35, 36 and 38; Austrian trade mark registration No 200 373 of the word mark "MPAY24" for goods and services in classes 9, 16, 35, 36 and 38.

Decision of the Opposition Division: Rejected the trade mark application in its entirety

Decision of the Board of Appeal: Partial dismissal of the appeal

Pleas in law: Infringement of Article 8(1) and (4) of Council Regulation 40/94 as the Board of Appeal wrongly assessed the likelihood of confusion between the trade marks concerned.

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