Action brought on 23 September 2010 - Apple v OHMI - Iphone Media (IPH IPHONE)

(Case T-448/10)

Language in which the application was lodged: English

Parties

Applicant: Apple, Inc. (Cupertino, USA) (represented by: M. Engelman, barrister and J. Olsen, solicitor)

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

Other party to the proceedings before the Board of Appeal: Iphone Media, SA (Seville, Spain)

Form of order sought

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 July 2010 in case R 1084/2009-4;

Uphold the applicant's opposition;

In the alternative, then applicant requests that its opposition be upheld in respect of such goods and services for which it is found that a likelihood of confusion exists and/or for such goods and services where it is determined there exists a risk of the Application Mark taking unfair advantage of, or being detrimental to, the distinctive character or repute of the applicant's mark;

Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings

Pleas in law and main arguments

Applicant for the Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark "IPH IPHONE", for goods and services in classes 16, 35, 38, 41 and 42 - Community trade mark application No 5562822

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited: Community trade mark registration No 2901007 of the word mark "IPHONE", for goods and services in classes 9, 38 and 42

Decision of the Opposition Division: Upheld the opposition partially

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The applicant considers that the contested decision infringes Articles 8(1)(b) and 8(5) of Council Regulation (EC) No 207/2009, as the Board of Appeal misapplied the provisions of these articles to the contested trade mark.

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