Action brought on 23 November 2009 - Comercial Losan v OHIM - McDonald's International Property (Mc. Baby)

(Case T-466/09)

Language in which the application was lodged: Spanish

Parties

Applicant: Comercial Losan (Zaragoza, Spain) (represented by: A. Vela Ballesteros, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: McDonald's International Property Co. Ltd (Delaware, United States)

Form of order sought

uphold the action brought against the decision of the Board of Appeal of 1 September 2009 - R 1706/2008-1 Mc Baby/Mc Kids in the opposition proceedings No B 1049362 (Community trade mark application 4.441.393), allow registration of the Community trade mark applied for, and order the opposing party to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Comercial Losan

Community trade mark concerned: Figurative mark containing the word element 'Mc. Baby' (registration application No 4.741.393) for goods and services in Classes 25, 35 and 39

Proprietor of the mark or sign cited in the opposition proceedings: McDonald's International Property Co. Ltd.

Mark or sign cited in opposition: Community figurative mark containing the word element 'McKids' (mark No 3.207.354) for goods in classes 16, 25 and 28; Community word mark 'McDONALD'S' (mark No 62.497) for goods and services in Classes 25, 28, 29, 30, 31, 32, 35, 41 and 42; and Community figurative mark containing the word element 'McDONALD'S' (mark No 62.521) for goods and services in Classes 25, 28, 29, 30, 31, 32, 35, 41 and 42

Decision of the Opposition Division: Partial upholding of the opposition.

Decision of the Board of Appeal: Partial upholding of the appeal.

Pleas in law: Incorrect interpretation and application of Article 8(1)(b) of Regulation No 40/94, replaced by Regulation No 207/2009.

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