Action brought on 19 December 2011 - Asos v OHIM - Maier (ASOS)

(Case T-647/11)

Language in which the application was lodged: English

Parties

Applicant: Asos plc (London, United Kingdom) (represented by: P. Kavanagh, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Roger Maier (San Pietro di Stabio, Switzerland)

Form of order sought

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 October 2011 in case R 2215/2010-4;

Authorise registration of the application mark in respect of all of the goods and services covered by the specification of the application mark; and

Order the defendant to pay the costs of the action.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark "ASOS", for goods and services in classes 3, 14, 18, 25 and 35 - Community trade mark application No 4524997

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

Mark or sign cited in opposition: Community trade mark registration No 4580767 of the word mark "ASSOS", for goods in classes 3, 12 and 25

Decision of the Opposition Division: Partially upheld the opposition

Decision of the Board of Appeal: Partially annulled the decision of the opposition division

Pleas in law: The Board of Appeal failed to properly consider co-existence and its effect on the global assessment of the likelihood of confusion, and erred in dismissing the relevance of the evidence of co-existence. Further, the Board of Appeal erred in its assessment of the conceptual meaning of the application mark and failed to take into account the correct conceptual meaning of the application mark in assessing likelihood of confusion based on a global assessment.

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