# C_2006310EN.01002301.xml

| 16.12.2006 | EN | Official Journal of the European Union | C 310/23 |
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16.12.2006

EN

Official Journal of the European Union

C 310/23

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Action brought on 19 October 2006 — NBC Fourth Realty v OHIM — Regalado Pareja and Pedrol (PK MAX)

(Case T-293/06)

(2006/C 310/44)

Language in which the application was lodged: English

Parties

Applicant: NBC Fourth Realty Corp. (Las Vegas, USA) (represented by: A. Woodgate, A. Smith, Solicitors)

Applicant:

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

Defendant

Other parties to the proceedings before the Board of Appeal: Miguel Isaias Regalado Pareja and Bibiana Pedrol, trading as Rosell (Alicante, Spain)

Other parties to the proceedings before the Board of Appeal:

Form of order sought

| — | Annulment of the contested decision of the First Board of Appeal, of 5 July 2006, in Case R 397/2005-1; |
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Annulment of the contested decision of the First Board of Appeal, of 5 July 2006, in Case R 397/2005-1;

| — | order the Office for Harmonisation in the Internal Market to pay the costs of this application and also the costs of the proceedings before the Board of Appeal. |
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order the Office for Harmonisation in the Internal Market to pay the costs of this application and also the costs of the proceedings before the Board of Appeal.

Pleas in law and main arguments

Applicant for the Community trade mark: Miguel Isaias Regalado Pareja and Bibiana Pedrol, trading as Rosell.

Applicant for the Community trade mark:

Community trade mark concerned: The figurative Community Trademark PK MAX, claiming the colour navy blue for goods and services in classes 3, 25 and 28 in Case R 397/2005-1.

Community trade mark concerned:

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

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

Mark or sign cited: The national word marks T.K. MAXX for goods and services in class 35, the Community word mark T.K. MAX, for goods and services in classes 3, 14, 18, 25, 28 and 35, as well as earlier non-registered national word marks of the same denomination, used in the course of trade in Ireland, the United Kingdom and the Netherlands.

Mark or sign cited:

Decision of the Opposition Division: Opposition upheld in its entirety.

Decision of the Opposition Division:

Decision of the Board of Appeal: Appeal upheld and case remitted to the Opposition Division for the remaining grounds of opposition.

Decision of the Board of Appeal:

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94.

Pleas in law:

The applicant claims that the Board of Appeal erred in law, by concluding there was no likelihood of confusion between the earlier and the contested mark. In particular, the applicant submits the Board of Appeal incorrectly interpreted the ‘consumer’ of the protected services while it manifestly erred in the assessment of the visual, phonetic and conceptual similarities between the respective trade marks. Moreover, the Board of Appeal allegedly failed to correctly assess the scope of protection enjoyed by the earlier mark, as a result of its reputation and/or inherent distinctiveness. Finally, the applicant submits the Board has incorrectly introduced additional requirements into the provisions of Article 8(1)(b) of Council Regulation No 40/94.

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