Action brought on 21 April 2008 - Kido Industrial v OHIM - Amberes (SCORPIONEXO)

(Case T-152/08)

Language in which the application was lodged: Spanish

Parties

Applicant: Kido Industrial Ltd (Seoul, Republic of Korea) (represented by: M. Mall, 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: Amberes, SA

Form of order sought

Annulment in their entirety of the decision of the Board of Appeal No R 0287/2007-1 and of the decision of the Opposition Division No B 855 728 and

Order that Amberes pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Kido Industrial Ltd.

Community trade mark concerned: Word mark 'SCORPIONEXO' (registration application No 3.886.249) for goods in Classes 9 and 28.

Proprietor of the mark or sign cited in the opposition proceedings: Amberes, SA.

Mark or sign cited in opposition: Spanish figurative marks (No 339.142, No 499.599, No 499.600 and No 339.140) and international figurative marks (No 206.346 and No 206.347) composed of the design of a scorpion and the word 'ESCORPION', for goods in Classes 6, 8, 12, 16, 20, 21 and 28; and in Classes 22, 24, 25 and 26 respectively. Spanish word mark 'ESCORPION' (No 555.764) for goods in Class 25. Community word mark 'ESCORPION' (No 778.217) for goods in Classes 22, 24, 25 and 26.

Decision of the Opposition Division: The Opposition Division, founding its decision solely on the earlier Spanish figurative mark No 339.142 allowed the opposition in respect of goods in Classes 9 and 28, and refused entirely the application for registration in respect of those goods.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Incorrect application of Article 8(1)(b) of Regulation (EC) No 40/94 on the Community trade mark.

____________