Action brought on 2 April 2007 - MarketTools v OHIM - Optimus-Telecomunicações (ZOOMERANG)

(Case T-105/07)

Language in which the application was lodged: English

Parties

Applicant: MarketTools, Inc. (San Francisco, United-States) (represented by: W. von der Osten-Sacken and A. González Hähnlein, lawyers)

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

Other party to the proceedings before the Board of Appeal: Optimus-Telecomunicações, SA (Maia, Portugal)

Form of order sought

Annul the decision of the Second Board of Appeal of 25 January 2007 (Appeal No R 253/2006-2);

order Optimus-Telecomunicações S.A. to bear the costs of the proceedings.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark 'ZOOMERANG' for goods and services in classes 9, 35 and 42 - application No 1 603 950

Proprietor of the mark or sign cited in the opposition proceedings: Optimus-Telecomunicações, SA

Mark or sign cited: The national word and figurative marks 'BOOMERANG' for goods and services in classes 9, 16, 35, 37, 38 and 42

Decision of the Opposition Division: Opposition upheld in its entirety

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 as the Board of Appeal did not correctly assess the similarity of the goods and services and the trade marks in question.

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