Action brought on 5 August 2008 - Fitoussi v OHIM - Loriot (IBIZA REPUBLIC)

(Case T -311/08)

Language in which the application was lodged: French

Parties

Applicant: Paul Fitoussi (Vincennes, France) (represented by: K. Manhaeve, T. van Innis and G. Glas, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Bernadette Nicole J. Loriot (Ibiza, Spain)

Form of order sought

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market of 7 May 2008 in Case R 1135/2007-2;

order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Bernadette Nicole J. Loriot

Community trade mark concerned: Figurative mark 'IBIZA REPUBLIC' for goods in Classes 25, 41 and 43 - application No 3 868 072

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

Mark or sign cited in opposition: National figurative mark in the form of a five-pointed star surrounded by a circle, for goods in Class 25

Decision of the Opposition Division: Dismissal of the opposition

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Breach of Article 8(1)(b) of Council Regulation No 40/94 in as much as i) the earlier mark consists of a representation of a five-pointed star surrounded by a circle and not only a star; ii) the earlier mark is an intrinsically strong mark and not a mark with little distinctive character; and iii) the graphic element of the earlier mark dominates the word element and not vice versa.

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