Action brought on 5 January 2009 - UniCredit v OHIM - Union Investment Privatfonds (UniCredit)

(Case T -4/09)

Language in which the application was lodged: Italian

Parties

Applicant: UniCredit SpA (Rome, Italy) (represented by: G. Floridia, lawyer, and R. Floridia, 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: Union Investment Privatfonds GmbH (Frankfurt am Main, Germany)

Form of order sought

Annul the decision of the Second Board of Appeal of OHIM delivered on 3 November 2008 in Case R 1449/2006-2, relating to opposition proceedings No B 699.746.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Multi-coloured figurative mark '1 UniCredit' (the number one being 45° inclined to the right and impressed on the spherical logo) (registration application No 2.911.105), for goods and services in Classes 9, 16, 35, 36, 38, 39, 41 and 42.

Proprietor of the mark or sign cited in the opposition proceedings: Union Investment Privatfonds GmbH.

Mark or sign cited in opposition: German word marks 'UniSECTOR', 'UniDynamicFonds' and 'UniGarant', for services in Classes 35 and 36.

Decision of the Opposition Division: Opposition upheld in respect of the services in Class 36.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Misapplication of Article 8(1)(b) of Regulation (EC) No 40/94 on the Community trade mark. The applicant argues that the contested decision did not take account of the powers of perception of the public at which the services covered are directed or of the non-existent or minimal distinctiveness of the prefix 'Uni'.

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