Action brought on 10 July 2009 - Pineapple Trademarks v OHIM - Dalmau Salmons (KUSTOM)

(Case T-272/09)

Language in which the application was lodged: English

Parties

Applicants: Pineapple Trademarks Pty Ltd (Burleigh Heads, Australia) (represented by: N. Saunders, Barrister)

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

Other party to the proceedings before the Board of Appeal: Angel Custodio Dalmau Salmons (Barcelona, Spain)

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 5 March 2009 in case R 383/2008-1 and remit the application for the Community trade mark to OHIM in order to allow it to proceed ; and

Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark "KUSTOM", for goods in classes 18, 25 and 28

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: Community trade mark registration of the word mark "CUSTO" for goods in classes 18 and 25

Decision of the Opposition Division: Upheld the opposition for all the contested goods

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 207/2009 as the Board of Appeal erred in its finding that there is a likelihood of confusion between the trade marks concerned; Infringement of the rights of defence of the applicant as the Board of Appeal made findings in relation to the aural and conceptual similarity of the trade marks concerned on which the applicant was not given the opportunity to comment and which were unsupported by relevant evidence.

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