Action brought on 20 June 2011 - Vinci Energies Schweiz v OHIM - Estavis (Yellow representation of the Brandenburg Gate)

(Case T-327/11)

Language in which the application was lodged: German

Parties

Applicant: Vinci Energies Schweiz AG (Zurich, Switzerland) (represented by: M. Graf, lawyer)

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

Other party to the proceedings before the Board of Appeal: Estavis AG (Berlin, Germany)

Form of order sought

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 31 March 2011 in Case R 231/2010-1;

Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Estavis AG

Community trade mark concerned: Representation of the Brandenburg Gate claiming the colour honey yellow for goods and services in Classes 6, 7, 9, 11, 35, 36, 37, 38, 40, 41 and 42 - application No 6 585 871

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

Mark or sign cited in opposition: the figurative mark 'ETAVIS' for goods and services in Classes 6, 7, 9, 11, 35, 37, 38, 40, 41, 42 and 45

Decision of the Opposition Division: the opposition was partially upheld

Decision of the Board of Appeal: the Opposition Division's decision was annulled and the opposition was rejected

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009 as there is likelihood of confusion between the marks at issue due to the at least average distinctive character of the mark on which the opposition is based and the identical nature or high degree of similarity of the signs at issue.

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