Action brought on 29 September 2011 - Evonik Industries v OHIM - Impulso Industrial Alternativo (Impulso creador)

(Case T-529/11)

Language in which the application was lodged: English

Parties

Applicant: Evonik Industries AG (Essen, Germany) (represented by: J. Albrecht, lawyer)

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

Other party to the proceedings before the Board of Appeal: Impulso Industrial Alternativo, SA (Madrid, Spain)

Form of order sought

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 June 2011 in case R 1101/2010-2; and

Order the defendant to bear the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark "Impulso creador", for various goods and services among which services in classes 35, 36, 37 and 42 - Community trade mark application No 6146187

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: Spanish trade mark registration No 2633891 of the figurative mark "IMPULSO", for services in classes 35 and 42; Community trade mark registration No 4438206 of the figurative mark "IMPULSO", for services in classes 35 and 42

Decision of the Opposition Division: Partially upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal did not correctly consider the different overall impression of the conflicting trademarks.

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