Action brought on 31 May 2011 - Ewald v OHIM - Kin Cosmetics (Keen)

(Case T-280/11)

Language in which the application was lodged: German

Parties

Applicant: Rita Ewald (Frauenwald, Germany) (represented by: S. Reinhardt, lawyer)

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

Other party to the proceedings before the Board of Appeal: Kin Cosmetics, SA (Sant Feliu de Guixols, Spain)

Form of order sought

The applicant claims that the Court should:

Annul the decision of the First Board of Appeal of OHIM of 3 March 2011 in Case R 1383/2010-1;

Reject the opposition filed at OHIM on 24 July 2008 under No B 1359944 by KIN COSMETICS, SA against Community trade mark application No EM 006 498 621 'Keen';

In the alternative, in the event that the Court cannot itself reach a decision under the second head of claim, refer the case back to OHIM for a fresh decision;

Order the defendant and KIN COSMETICS, SA, in so far as it decides to participate in the proceedings, to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: the word mark 'Keen' for goods and services in Classes 3 and 44 - application No 6 498 621

Proprietor of the mark or sign cited in the opposition proceedings: Kin Cosmetics, SA

Mark or sign cited in opposition: the Community and national word and figurative marks 'KIN', 'KinBooKs', 'KINWORKS' and 'KINSTYLIUM' for goods and services in Classes 3, 5, 35 and 44

Decision of the Opposition Division: the opposition was upheld

Decision of the Board of Appeal: the appeal was dismissed

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009 as there is no likelihood of confusion between the marks at issue.

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