Action brought on 29 November 2010 - Omya v OHIM - Alpha Calcit (CALCIMATT)

(Case T-547/10)

Language in which the application was lodged: German

Parties

Applicant: Omya AG (Oftringen, Switzerland) (represented by: F. Kuschmirek, 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: Alpha Calcit Füllstoffgesellschaft mbH (Cologne, Germany)

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) (OHIM) of 16 September 2010 in Case R 1370/2009-1, and order the defendant to register Community trade mark application No 5 200 654 'CALCIMATT' for all the goods in respect of which application was sought;

order the defendant to pay the costs;

in the alternative, stay the proceedings until a final decision has been taken on whether OHIM is to remove the opposing mark EU 003513488 'CALCILAN' from the register.

Pleas in law and main arguments

Applicant for a Community trade mark: Omya AG.

Community trade mark concerned: Word mark 'CALCIMATT' for goods in Classes 1 and 2.

Proprietor of the mark or sign cited in the opposition proceedings: Alpha Calcit Füllstoffgesellschaft mbH.

Mark or sign cited in opposition: Internationally registered word marks 'CALCIPLAST', 'CALCILIT' and 'CALCICELL' for goods in Classes 1 and 19, Community word marks 'Calcilit' and 'CALCILAN' for goods in Classes 1 and 19, and national word works 'CALCICELL' and 'CALCIPLAST' for goods in Class 1.

Decision of the Opposition Division: Opposition rejected.

Decision of the Board of Appeal: Annulment of the decision of the Opposition Division and refusal to register.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, ¹ since there is no likelihood of confusion between opposing marks as regards the goods in respect of which application was sought.

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¹ - Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).