Action brought on 12 May 2009 - Poloplast v OHIM - Polypipe Building Products (P)

(Case T -189/09)

Language in which the application was lodged: German

Parties

Applicant: Poloplast GmbH & Co KG (Leonding, Austria) (represented by: G. Bruckmüller, 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: Polypipe Building Products Ltd (Edlington, United Kingdom)

Form of order sought

Annul the contested decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market of 25 February 2009 or alter it in such a way that it establishes that there is no likelihood of confusion between the markets covered, and

Order the Office for Harmonisation in the Internal Market to pay the applicant's costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Poloplast GmbH & Co KG.

Community trade mark concerned: the figurative mark 'p' for goods and services in Classes 6, 11, 17, 19 and 42 (application No 3 148 194).

Proprietor of the mark or sign cited in the opposition proceedings: Polypipe Building Products Ltd.

Mark or sign cited in opposition: the figurative mark 'P' for goods in Class 17 (Community trade mark No 33 191) and the figurative mark 'P POLYPIPE' for goods in Classes 6, 11, 17, 19 and 20 (Community trade mark No 2 685 691).

Decision of the Opposition Division: Rejection of the opposition.

Decision of the Board of Appeal: Partial dismissal of the appeal.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009 ¹), as there is no likelihood of confusion between the two marks at issue.

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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).