# C_2005082EN.01002902.xml

| 2.4.2005 | EN | Official Journal of the European Union | C 82/29 |
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2.4.2005

EN

Official Journal of the European Union

C 82/29

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Action brought on 21 December 2004 by Merant GmbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-491/04)

(2005/C 82/57)

Language in which the application was drafted: German

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of First Instance of the European Communities on 21 December 2004 by Merant GmbH, Ismaning (Germany), represented by A. Schulz, Rechtsanwalt.

Focus Magazin Verlag GmbH, Munich (Germany) was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

| — | annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 October 2004 in Case R-542/2002-2; |
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annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 October 2004 in Case R-542/2002-2;

| — | reinstate the decision of the Opposition Division of 29 April 2002 (Decision No 1198/2002), namely to reject Community trade mark application No 453 720 for the following goods and services:






  — | ‘Machine readable data carriers of all types equipped with information, and software, in particular digital and analog data carriers containing, for example, cultural, scientific, industrial or technical information; programmed floppy disks, CD-ROM video cassettes, compact discs, chip discs; magnetic data carriers in Class 9; |
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reinstate the decision of the Opposition Division of 29 April 2002 (Decision No 1198/2002), namely to reject Community trade mark application No 453 720 for the following goods and services:

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‘Machine readable data carriers of all types equipped with information, and software, in particular digital and analog data carriers containing, for example, cultural, scientific, industrial or technical information; programmed floppy disks, CD-ROM video cassettes, compact discs, chip discs; magnetic data carriers in Class 9;

| — | Publications, newspapers and periodicals, books, posters, calendars, photographs; typewriter and office requisites, namely non-electric office equipment, writing implements, ball-point pens, fountain pens, teaching and instructional material, including in the form of models and display boards in Class 16; |
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Publications, newspapers and periodicals, books, posters, calendars, photographs; typewriter and office requisites, namely non-electric office equipment, writing implements, ball-point pens, fountain pens, teaching and instructional material, including in the form of models and display boards in Class 16;

| — | Publication of digital and analog data carriers containing, for example, cultural, scientific, sports, industrial or technical information in Class 41 and up-dating services, including for CD ROMs; editor's services in Class 42.’; |
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Publication of digital and analog data carriers containing, for example, cultural, scientific, sports, industrial or technical information in Class 41 and up-dating services, including for CD ROMs; editor's services in Class 42.’;

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

Pleas in law and main arguments:

| Applicant for Community trade mark: | Focus Magazin Verlag GmbH |
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| Community trade mark sought: | Word mark 'FOCUS' for goods and services in Classes 3, 6, 7, 8, 9, 14, 15, 16, 20, 21, 24, 25, 26, 28, 29, 32, 33, 35, 36, 38, 39, 41, 42 – application No 453 720. |
| Proprietor of mark or sign cited in the opposition proceedings: | The applicant. |
| Mark or sign cited in opposition: | The international figurative mark 'MICRO FOCUS' for goods and services in Classes 9, 16, 41 and 42. |
| Decision of the Opposition Division: | Opposition allowed in part. |
| Decision of the Board of Appeal: | Appeal brought by Focus Magazin Verlag GmbH allowed and applicant's opposition rejected. |
| Pleas in law: | Article 8(1)(b) of Regulation (EC) No 40/94 has been misapplied. There is a likelihood of confusion between the conflicting marks. The later mark applied for has adopted an element of the earlier mark identically and the goods and services covered by the marks are partly identical and partly extremely similar. |

Applicant for Community trade mark:

Focus Magazin Verlag GmbH

Community trade mark sought:

Word mark 'FOCUS' for goods and services in Classes 3, 6, 7, 8, 9, 14, 15, 16, 20, 21, 24, 25, 26, 28, 29, 32, 33, 35, 36, 38, 39, 41, 42 – application No 453 720.

Proprietor of mark or sign cited in the opposition proceedings:

The applicant.

Mark or sign cited in opposition:

The international figurative mark 'MICRO FOCUS' for goods and services in Classes 9, 16, 41 and 42.

Decision of the Opposition Division:

Opposition allowed in part.

Decision of the Board of Appeal:

Appeal brought by Focus Magazin Verlag GmbH allowed and applicant's opposition rejected.

Pleas in law:

Article 8(1)(b) of Regulation (EC) No 40/94 has been misapplied. There is a likelihood of confusion between the conflicting marks. The later mark applied for has adopted an element of the earlier mark identically and the goods and services covered by the marks are partly identical and partly extremely similar.

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