# C_2005205EN.01002501.xml

| 20.8.2005 | EN | Official Journal of the European Union | C 205/25 |
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20.8.2005

EN

Official Journal of the European Union

C 205/25

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Action brought on 3 June 2005 by Marker Völkl International GmbH against Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-217/05)

(2005/C 205/46)

Language in which the application was submitted: German

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 3 June 2005 by Marker Völkl International GmbH, established in Baar (Switzerland), represented by J. Bauer, lawyer.

Icon Health & Fitness Italia S.P.A., Perugia (Italy), was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

| 1. | annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 1 April 2005, case number R 708/2004-1; |
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1.

annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 1 April 2005, case number R 708/2004-1;

| 2. | order the defendant to pay the costs. |
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2.

order the defendant to pay the costs.

Pleas in law and main arguments

| Applicant for Community trade mark: | The applicant, Marker Völkl International GmbH |
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| Community trade mark concerned: | The word mark 'MOTION' for goods in Classes 25 and 28 (Application No 2 099 687) |
| Proprietor of the mark or sign cited in the opposition proceedings: | Icon Health & Fitness Italia S.P.A. |
| Mark or sign cited in opposition: | The word mark 'FIT MOTION' for goods in Classes 25 and 28 (Community trade mark No 1 775 196) |
| Decision of the Opposition Division: | Rejection of application No 2 099 687 |
| Decision of the Board of Appeal: | Dismissal of the appeal |
| Pleas in law: | The decision of the Board of Appeal infringes Article 8(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark because there is no likelihood of confusion between the marks in opposition as the mark cited in opposition has no or rather very slight distinctive character and the similarity of the marks in opposition is slight. |

Applicant for Community trade mark:

The applicant, Marker Völkl International GmbH

Community trade mark concerned:

The word mark 'MOTION' for goods in Classes 25 and 28 (Application No 2 099 687)

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

Icon Health & Fitness Italia S.P.A.

Mark or sign cited in opposition:

The word mark 'FIT MOTION' for goods in Classes 25 and 28 (Community trade mark No 1 775 196)

Decision of the Opposition Division:

Rejection of application No 2 099 687

Decision of the Board of Appeal:

Dismissal of the appeal

Pleas in law:

The decision of the Board of Appeal infringes Article 8(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark because there is no likelihood of confusion between the marks in opposition as the mark cited in opposition has no or rather very slight distinctive character and the similarity of the marks in opposition is slight.

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