Action brought on 28 September 2010 - ESGE v OHIM - Kenwood Appliances Luxembourg (KMIX)

(Case T -444/10)

Language in which the application was lodged: German

Parties

Applicant: ESGE AG (Bussnang, Switzerland) (represented by: J. Klink, 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: Kenwood Appliances Luxembourg SA (Luxembourg, Luxembourg)

Form of order sought

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 July 2010 in Case R 1249/2009-2;

Amend the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 July 2010 in Case R 1249/2009-2 so that the Opposition Division's decision of 21 August 2008 in Case B 1252958 is annulled;

Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs of the proceedings, including the costs incurred in the course of the appeal procedure.

Pleas in law and main arguments

Applicant for a Community trade mark: Kenwood Appliances Luxembourg SA

Community trade mark concerned: the word mark 'KMIX' for goods in Classes 7 and 11

Proprietor of the mark or sign cited in the opposition proceedings: the applicant

Mark or sign cited in opposition: the word mark 'BAMIX' for goods in Classes 7 and 40

Decision of the Opposition Division: rejection of the opposition

Decision of the Board of Appeal: dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009¹ as there is a likelihood of confusion between the 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).