Action brought on 2 April 2007 - Fratex Indústria e Comércio v OHIM - USA Track & Field (TRACK & FIELD USA)

(Case T -103/07)

Language in which the application was lodged: Portuguese

Parties

Applicant: Fratex Indústria e Comércio (São Paulo, Brazil) (represented by: B. Braga da Cruz, 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: USA Track & Field, Inc.

Form of order sought

Annulment of the decision of 18 January 2007 of the Fourth Board of Appeal of OHIM (Case No R. 1061/2005-4);

an order that OHIM should, in consequence, refuse to register Community trade mark No 168088 in respect of goods in Class 25;

an order that OHIM should pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: USA Track & Field, Inc.

Community trade mark concerned: Mixed mark USA TRACK & FIELD

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

Mark or sign cited in opposition: TRACK & FIELD

Decision of the Opposition Division: Upheld the opposition.

Decision of the Board of Appeal: Allowed the appeal brought by USA Track & Field, Inc.

Pleas in law: The applicant takes the view that the contested decision is contrary to Article 8(1)(b) of Regulation No 40/94, ¹ since there exists the likelihood of confusion on the part of consumers faced with the possible coexistence on the market of the two signs at issue, on account of the coincidence of the term TRACK & FIELD. As a matter of fact, the goods covered by the marks at issue are identical and, even if there is no likelihood of confusion in the strict sense, there is still the likelihood of risk of confusion in the form of association with the earlier trade mark, which is included in the former [likelihood of confusion] in accordance with Article 8(1)(b) in fine of that regulation.

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¹ - Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1)