Action brought on 17 December 2010 - Aitic Penteo v OHIM - Atos Worldline (PENTEO)

(Case T-585/10)

Language in which the application was lodged: English

Parties

Applicant: Aitic Penteo, SA (Barcelona, Spain) (represented by: J. Carbonell, lawyer)

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

Other party to the proceedings before the Board of Appeal: Atos Worldline SA (Bruxelles, Belgium)

Form of order sought

Modify the decision of the First Board of Appeal of the Office for Harmonization in the Internal Market (Trade Marks and Designs) of 23 September 2010 in case R 774/2010-1 and grant the Community trade mark application No 5480561

In the alternative, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 September 2010 in case R 774/2010-1; and

Order the defendant and the other party to the proceedings to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark "PENTEO", for goods and services in classes 9, 38 and 42 - Community trade mark application No 5480561

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: Benelux trade mark registration No 772120 of the word mark "XENTEO" for goods and services in classes 9, 36, 37, 38 and 42; International trade mark registration No 863851 of the word mark "XENTEO" for goods and services in classes 9, 36, 37, 38 and 42

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The applicant considers that the contested decision infringes: (i) Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which prohibits any discrimination, requiring an equal treatment accordingly with the law, (ii) Article 9 of Council Regulation (EC) No 207/2009, as the Board of Appeal disregarded the prior rights of the applicant, (iii) Articles 75 and 76 of Council Regulation (EC) No 207/2009, as the Board of Appeal disregarded facts and evidences submitted in due time by the applicant, and (iv) Article 8(1)(b) of Council Regulation (EC) No 207/2009, as the Board of Appeal erred in assessment of likelihood of confusion.

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