Action brought on 10 June 2011 - Otto v OHIM - Nalsani (TOTTO)

(Case T-300/11)

Language in which the application was lodged: German

Parties

Applicant: Otto GmbH & Co. KG (Hamburg, Germany) (represented by: P. Schäuble and S. Müller, lawyers)

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

Other party to the proceedings before the Board of Appeal: Nalsani, SA (Bogota, Colombia)

Form of order sought

The applicant claims that the Court should:

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 9 March 2011 in Case R 1291/2010-2;

Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Nalsani, SA

Community trade mark concerned: the figurative mark 'TOTTO' for goods in Classes 3, 9, 14, 18 and 25 - application No 6 212 451

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

Mark or sign cited in opposition: the national figurative mark 'OTTO' for goods in Classes 3, 9, 14, 18 and 25

Decision of the Opposition Division: the opposition was upheld

Decision of the Board of Appeal: the Opposition Division's decision was annulled and the opposition was rejected

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009 as there is a likelihood of confusion between the marks at issue. The Board of Appeal focused on the wrong factors in assessing the visual similarity of the signs.

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