# C_2005106EN.01003702.xml

| 30.4.2005 | EN | Official Journal of the European Union | C 106/37 |
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30.4.2005

EN

Official Journal of the European Union

C 106/37

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Action brought on 17 February 2005 by NetScout Systems, Inc., against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-75/05)

(2005/C 106/75)

Language in which the application was lodged: English

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 17 February 2005 by NetScout Systems, Inc., established in Westford, Massachusetts (USA), represented by M. Holah, Solicitor.

Kye Systems Corporation, established in Taipei Hsien (Taiwan) was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

| — | annul the contested decision; |
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annul the contested decision;

| — | order that the defendant pays the applicant's costs of this appeal; |
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order that the defendant pays the applicant's costs of this appeal;

| — | in the alternative, alter the contested decision, reject the opposition filed by Kye, allow the CTM application to go forward and order that the defendant pays the applicant's costs of this appeal. |
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in the alternative, alter the contested decision, reject the opposition filed by Kye, allow the CTM application to go forward and order that the defendant pays the applicant's costs of this appeal.

Pleas in law and main arguments

| Applicant for Community trade mark: | Netscout Systems, Inc. |
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| Community trade mark concerned: | The word mark ‘NGENIUS’ for goods and services in classes 9, 16 and 42 (Computers, computer hardware and computer software; printed matter; computer programming; ...) — application No 1 830 900 |
| Proprietor of mark or sign cited in the opposition proceedings: | KYE Systems Corporation |
| Trade mark or sign cited in opposition: | The national figurative mark ‘GENIUS’ for goods in class 9 (computers, disk units, printers, fax machines, ...) |
| Decision of the Opposition Division: | Rejection of the trade mark application for all goods covered by it in class 9 |
| Decision of the Board of Appeal: | Dismissal of the appeal |
| Pleas in law: | Infringement of Article 8(1)(b) of Council Regulation No 40/94 |

Applicant for Community trade mark:

Netscout Systems, Inc.

Community trade mark concerned:

The word mark ‘NGENIUS’ for goods and services in classes 9, 16 and 42 (Computers, computer hardware and computer software; printed matter; computer programming; ...) — application No 1 830 900

Proprietor of mark or sign cited in the opposition proceedings:

KYE Systems Corporation

Trade mark or sign cited in opposition:

The national figurative mark ‘GENIUS’ for goods in class 9 (computers, disk units, printers, fax machines, ...)

Decision of the Opposition Division:

Rejection of the trade mark application for all goods covered by it in class 9

Decision of the Board of Appeal:

Dismissal of the appeal

Pleas in law:

Infringement of Article 8(1)(b) of Council Regulation No 40/94

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