Action brought on 25 May 2011 - Coin v OHIM - Dynamiki Zoi (Fitcoin)

(Case T-272/11)

Language in which the application was lodged: English

Parties

Applicant: Coin SpA (Mestre, Italy) (represented by: P. Perani and G. Ghisletti, lawyers)

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

Other party to the proceedings before the Board of Appeal: Dynamiki Zoi AE (Athens, Greece)

Form of order sought

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 February 2011 in case R 1836/2010-2;

Subordinately, annul the challenged decision only as far as CTM application No 3725298 was allowed for goods in class 25; and

Order the defendant to pay the costs.

Pleas in law and main arguments

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

Community trade mark concerned: The word mark "Fitcoin", for goods and services in classes 16, 25, 28, 35, 36 and 41 - Community trade mark application No 3725298

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

Mark or sign cited in opposition: Community trade mark registration No 109827, of the figurative mark "coin", for goods and services in classes 16, 25, 28 and 35; Community trade mark registration No 3308401, of the figurative mark "coin", for goods and services in classes 16, 25, 28 and 35; Community trade mark registration No 3364511, of the figurative mark "coinyou", for goods and services in classes 16, 35 and 36; Italian trade mark registration No 160126, of the figurative mark "coin", for goods in class 25; Italian trade mark registration No 253233, of the figurative mark "coin", for goods in classes 16, 25, 28, 35, 36 and 41; Italian trade mark registration No 240305, of the figurative mark "coin", for goods and services in classes 16, 25, 35, 36 and 41; Italian trade mark registration No 169548, of the figurative mark "coin", for goods in classes 16 and 28; Italian trade mark registration No 240286, of the figurative mark "coin", for goods in class 25; International trade mark registration No R381015, of the figurative mark "coin", for goods and services in classes 16, 25, 28, 35, 36 and 41; International trade mark registration No R363492, of the figurative mark "coin", for goods and services in classes 16, 28, 35, 36 and 41; International trade mark registration No 260545, of the figurative mark "coin", for goods in class 25; International trade mark registration No R299708, of the figurative mark "coin", for goods and services in classes 35, 36 and 41; International trade mark registration No 299710, of the figurative mark "coin", for goods in classes 16 and 28; International trade mark registration No R363491, of the figurative mark "coin", for goods in class 25

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Partially annulled the contested decision and upholded the opposition for goods in classes 28 and 41, and rejected the appeal for the remaining goods and services, therefore, allows the application for goods in classes 16, 25, 28, 35, 36 and 41

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal took account only of one of the possible meanings of the word FIT and found the existence of likelihood of confusion with reference to the main part of the relevant goods and services on the basis of such partial assessment.

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