Judgment of the Court of First Instance (Fifth Chamber) of 29 October 2009 – Peek & Cloppenburg v OHIM – Redfil (Agile)

(Case T-386/07)

Community trade mark – Opposition proceedings – Application for the Community figurative mark Agile – Earlier Community and national word marks Aygill’s – Relative ground for refusal – Likelihood of confusion – Similarity of the signs – Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009)

Community trade mark – Definition and acquisition of the Community trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Likelihood of confusion with the earlier mark (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 16, 42-44)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 26 July 2007 (Case R 1324/2006-2), relating to opposition proceedings between Peek & Cloppenburg and Redfil, SL.

Information relating to the case

Applicant for the Community trade mark:	Redfil, SL
Community trade mark sought:	Figurative mark Agile for goods in Classes 18, 25 and 28 – Application No 2659456
Proprietor of the mark or sign cited in the opposition proceedings:	Peek & Cloppenburg
Mark or sign cited in opposition:	Community and national word mark Aygill’s for goods in Classes 3, 6, 8, 9, 11, 14, 16, 18, 20, 21 and 24 to 28
Decision of the Opposition Division:	Opposition upheld in its entirety
Decision of the Board of Appeal:	Annulment of the Opposition Division’s decision and dismissal of the opposition in its entirety

Operative part

The Court:

1. Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 26 July 2007 (Case R 1324/2006 2);

2. Orders OHIM to pay the costs incurred by Peek & Cloppenburg;

3. Orders Redfil, SL to bear its own costs.