Case T-79/07: Action brought on 9 March 2007 — SHS Polar Sistemas Informáticos v OHIM — Polaris Software Lab (POLARIS)
Date: 2007-04-28
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), software, trade-mark law

28.4.2007

EN

Official Journal of the European Union

C 95/55

Pleas in law and main arguments

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Applicant for the Community trade mark: Polaris Software Lab Ltd

Community trade mark concerned: The word mark ‘IXI’ for goods
in class 9 — application No 723 140

Proprietor of the mark or sign cited in the opposition proceedings:
Jochen und Eckhard Klein GbR

Mark or sign cited: The Community word mark ‘ixi’ for goods in
class 9

Decision of the Opposition Division: Opposition upheld for all the
contested goods

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: The opponent did not adduce evidence of similarity
between the respective goods; the Board of Appeal took an
unduly broad view of the scope of protection of the earlier
mark and failed to properly analyse the relevant
factors
governing the assessment of similarity of the respective goods.
Furthermore, the Board of Appeal took the reasons for the
applicant to select its mark into consideration, which the appli-
cant submits is an irrelevant consideration.

Community trade mark concerned: The figurative mark ‘POLARIS’
for goods and services in classes 9 and 42 — application
No 3 267 713

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

Mark or sign cited: The Community word mark ‘POLAR’ for
goods and services in classes 9, 38 and 42

Decision of the Opposition Division: Opposition upheld for all the
contested goods in class 9

Decision of the Board of Appeal: Annulment of the Opposition
Division's decision

Pleas in law: Violation of Article 8(1)(b) of Council Regulation
No 40/94 as i) the earlier trade mark can be applied to software
destined to a non-specialist consumer, which could give rise to a
confusion, ii) the small visual and phonetic differences between
the two conflicting trade marks do not suffice to avoid a likeli-
hood of confusion and iii) both marks are connected to the
same meaning.

Action brought on 9 March 2007 — SHS Polar Sistemas
Informáticos v OHIM — Polaris Software Lab (POLARIS)

(Case T-79/07)

(2007/C 95/110)

Language in which the application was lodged: English

Action brought on 15 March 2007 — JanSport
Apparel v OHIM (BUILT TO RESIST)

(Case T-80/07)

(2007/C 95/111)

Language of the case: English

Parties

Applicant: SHS Polar Sistemas Informáticos, SL (Madrid, Spain)
(represented by: C. Hernández Hernández, lawyer)

Parties

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

Other party to the proceedings before the Board of Appeal: Polaris
Software Lab Ltd (Chennai, India)

JanSport Apparel Corp.

(repre-
Applicant:
sented by: C. Bercial Arias, C. Casalonga, K. Dimidjian-
Lecompte, lawyers)

(Wilmington, USA)

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

Form of order sought

— That the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market dated
8 January 2007 in Case R 658/2006-2 be annulled;

— that OHIM bears its own cost and pays those incurred by

the applicant.

Form of order sought

— Annul the contested decision R 1090/2006-2 of the Second
Board of Appeal, dated 12 January 2007, partially refusing
the registration of CTM Application No 2937522 BUILT TO
RESIST for the following goods: