Action brought on 7 October 2013 – Microsoft v OHIM – Softkinetic Software (KINECT)

(Case T-536/13)

Language in which the application was lodged: English

Parties

Applicant: Microsoft Corp. (Redmond, United States) (represented by: A. Meijboom, lawyer)

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

Other party to the proceedings before the Board of Appeal: Softkinetic Software SA (Brussels, Belgium)

Form of order sought

The applicant claims that the Court should:

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 25 July 2013 given in Case R 2373/2011-1;

Order the defendant to pay the costs of the proceedings; and

Order the other party to the proceedings before the Board of Appeal, should it intervene, to pay the costs incurred in the proceedings before the OHIM.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark “KINECT” for goods in Class 9 – Community trade mark application No 9 058 141

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 in opposition: The word mark “SOFTKINETIC” for goods and services in Classes 9, 28, 38, 41 and 42 – International registration No 1 025 034 designating the European Union; the word mark “SOFTKINETIC” for goods and services in classes 9, 28, 38, 41 and 42 – Benelux trade mark registration No 850 946

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Upheld the appeal and annulled the contested decision

Pleas in law: Infringement of Articles 8(5) and 8(1)(b) CTMR.