Action brought on 20 March 2006 - TOMORROW FOCUS v OHIM

(Case T-90/06)

Language in which the application was lodged: German

Parties

Applicant: TOMORROW FOCUS AG (Munich, Germany) (represented by: U. Gürtler, 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: Information Builders (Netherlands) B.V. (Amstelveen, Netherlands)

Form of order sought

annul the decision of the First Board of Appeal of the defendant of 17 January 2006 (Case R 116/2005-1) inasmuch as that decision rejects application No 002382455 for Community trade mark 'Tomorrow Focus';

amend the decision of the First Board of Appeal of the defendant of 17 January 2006 (Case R 116/2005-1) in such a way that registration of application No 002382455 for Community trade mark 'Tomorrow Focus' is also granted in respect of the goods 'computers and data processing apparatus' and the services 'computer programming and design of computer programs (computer software); maintenance and upgrading of computer programs, and on-line upgrading services';

order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: the word mark 'Tomorrow Focus' for goods and services in Classes 9, 16, 35, 38, 41 and 42 (application No 2382455)

Proprietor of the mark or sign cited in the opposition proceedings: Information Builders (Netherlands) B.V.

Mark or sign cited in opposition: the figurative mark 'Focus' for goods and services in Classes 9, 16 and 42 (Community trade mark No 68585)

Decision of the Opposition Division: grant of the opposition and rejection of the application in respect of classes 9 and 42

Decision of the Board of Appeal: annulment of the contested decision, rejection of the application for certain goods and services in Classes 9 and 42 and rejection of the remainder of the opposition

Pleas in law: infringement of Article 8(1)(b) of Regulation (EC) No 40/94 ¹ on the ground that it was incorrectly held that there was a likelihood of confusion between the trade marks compared

____________

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