Action brought on 22 November 2010 - XXXLutz Marken v OHIM - Meyer Manufacturing (CIRCON)

(Case T -542/10)

Language in which the application was lodged: German

Parties

Applicant: XXXLutz Marken GmbH (Wels, Austria) (represented by: H. Pannen, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Meyer Manufacturing Co. Ltd (Hong Kong, China)

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 3 September 2010 in Case R 40/2010-1;

Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Word mark 'CIRCON' for goods in Classes 7, 11 and 21.

Proprietor of the mark or sign cited in the opposition proceedings: Meyer Manufacturing Company Limited.

Mark or sign cited in opposition: Word mark 'CIRCULON' for goods in Classes 11 and 21.

Decision of the Opposition Division: Refusal in part of registration.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, ¹ since there is no likelihood of confusion between the marks at issue, and infringement of Article 76(2)(2) of Regulation (EC) No 207/2009, since the Board of Appeal took into account in its decision facts which were not put forward by the other party to the proceedings before the Board of Appeal.

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¹ - Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).