Action brought on 14 March 2008 - Spitzer v OHIM - Homeland Housewares (Magic Butler)

(Case T -123/08)

Language in which the application was lodged: German

Parties

Applicant: Harald Spitzer (Hörsching, Austria) (represented by: T. Schmitz, Rechtsanwalt)

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

Other party to the proceedings before the Board of Appeal of OHIM: Homeland Housewares, LLC (Los Angeles, United States of America)

Form of order sought

Annul the decision of the First Board of Appeal of OHIM of 7 January 2008 (Case R 1508/2006-1);

reject the opposition entered by Homeland Housewares, LLC, against the word mark for which registration is sought, 'Magic Butler' No 4 109 906;

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Harald Spitzer.

Community trade mark concerned: The word mark 'Magic Butler' for goods in Classes 7 and 21 (application No 4 109 906)

Proprietor of the mark or sign cited in the opposition proceedings: Homeland Housewares, LLC

Mark or sign cited in opposition: The word mark 'MAGIC BULLET' for goods in Class 7 (Community trade mark 4 100 483) and the word mark 'THE MAGIC BULLET' for goods in Class 7 (Community trade mark 3 584 885)

Decision of the Opposition Division: Opposition upheld in part.

Decision of the Board of Appeal: Rejection of the appeal.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EG) No 40/94,¹ because there is no likelihood of confusion between the marks in conflict.

____________

¹ - Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1)