Action brought on 8 March 2007 - IXI Mobile v OHIM - Klein (IXI)

(Case T-78/07)

Language in which the application was lodged: English

Parties

Applicant: IXI Mobile, Inc (Redwood City, United States) (represented by: S. Malynicz, Barrister)

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

Other party to the proceedings before the Board of Appeal: Jochen und Eckhard Klein GbR (Olching, Germany)

Form of order sought

The decision of the Second Board of Appeal dated 11 January 2007 in Case R 796/2006-2 dismissing the appeal shall be annulled;

the Office and the other party shall bear their own costs and pay those of the applicant.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark 'IXI' for goods in class 9 - application No 723 140

Proprietor of the mark or sign cited in the opposition proceedings: Jochen und Eckhard Klein GbR

Mark or sign cited: The Community word mark 'ixi' for goods in class 9

Decision of the Opposition Division: Opposition upheld for all the contested goods

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: The opponent did not adduce evidence of similarity between the respective goods; the Board of Appeal took an unduly broad view of the scope of protection of the earlier mark and failed to properly analyse the relevant factors governing the assessment of similarity of the respective goods. Furthermore, the Board of Appeal took the reasons for the applicant to select its mark into consideration, which the applicant submits is an irrelevant consideration.

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