Action brought on 11 February 2008 - Hedgefund Intelligence v OHIM - Hedge Invest (InvestHedge)

(Case T-67/08)

Language in which the application was lodged: English

Parties

Applicant: Hedgefund Intelligence Ltd (London, United Kingdom) (represented by: J. Reed, Barrister, and G. Crofton Martin, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Hedge Invest SGR P.A. (Milan, Italy)

Form of order sought

The decision of the Second Board of Appeal dated 28 November 2007 in Case R 148/2007-2 dismissing the appeal shall be annulled;

the Opponent's opposition be dismissed;

the Office and the other party shall bear their own costs, and the other party shall pay those of the applicant before the Opposition Division, the Board of Appeal and this Court.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark 'InvestHedge' for goods and services in classes 9, 16, 36 and 41 - application No 3 081 081

Proprietor of the mark or sign cited in the opposition proceedings: Hedge Invest SGR P.A.

Mark or sign cited: The Community figurative mark 'HEDGE INVEST' for services in class 36

Decision of the Opposition Division: Opposition upheld for all the contested services in classes 36 and 41; the trade mark application allowed to proceed for the non-contested goods in classes 9 and 16

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The applicant submits that when determining the visual similarity of the respective marks in the eyes of non-English speaking consumers, the Board of Appeal was wrong to take account of the 'commercial impression' and to consider that the commercial impression of the conflicting trade marks was the same.

When assessing the aural similarity of the conflicting trade marks to the ears of non-English speaking consumers, the Board of Appeal improperly put the burden of proof on the applicant.

Finally, the Board of Appeal failed to apply, at the relevant stage, the uncontested finding that there was only a very limited and/or remote degree of similarity between the services in classes 36 and 41.

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