Case T-507/08: Action brought on 21 November 2008 — Psytech International v OHIM — Institute for Personality & Ability Testing (16PF)
Date: 2008-11-21
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), trade-mark law

C 19/34

EN

Official Journal of the European Union

24.1.2009

Action brought on 18 November 2008 — NEC Display
Solutions Europe v OHIM — C More Entertainment
(see more)

Action brought on 21 November 2008 — Psytech
International v OHIM — Institute for Personality & Ability
Testing (16PF)

(Case T-501/08)

(2009/C 19/63)

(Case T-507/08)

(2009/C 19/64)

Language in which the application was lodged: English

Language in which the application was lodged: English

Parties

Parties

Applicant: NEC Display Solutions Europe GmbH (Munich,
Germany) (represented by: P. Munzinger, lawyer)

Applicant: Psytech International Ltd (Pulloxhill, United Kingdom)
(represented by: N. Phillips, Solicitor and N. Saunders, Barrister)

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

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

Other party
C More Entertainment AB (Stockholm, Sweden)

to the proceedings before

the Board of Appeal:

Other party to the proceedings before the Board of Appeal: Institute
for Personality & Ability Testing, Inc. (Champaign, United States)

Form of order sought

Form of order sought

— Annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 28 August 2008 in case R 1388/2007-4
and reject the opposition;

— Order OHIM to pay the costs; and

— Order the other party to the proceedings before the Board
of Appeal to pay the costs, should it become an intervener
in this case.

— Annul the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 23 July 2008 in case R 1012/2007-2 and
remit the application for a declaration of invalidity to the
OHIM to allow it to proceed, and

— Order OHIM to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

the application for a
Registered Community trade mark subject of
declaration of
invalidity: The word mark ‘16PF’ for goods and
services in classes 9, 16, 35, 41 and 42 — Community trade
mark registration No 1 892 652

Community trade mark concerned: The figurative mark ‘see more’
for goods in class 9 — application No 4 034 741

Proprietor of the Community trade mark: The other party to the
proceedings before the Board of Appeal

Proprietor of the mark or sign cited in the opposition proceedings: The
other party to the proceedings before the Board of Appeal

Party requesting the declaration of invalidity of the Community trade
mark: The applicant

or

Mark
sign cited: Danish trade mark registration No
VR 2004 01590 of the word mark ‘CMORE’ for goods and
services in classes 9, 16, 35, 38 and 41; Finish trade mark regis-
tration No 231 366 of the word mark ‘CMORE’ for goods and
services in classes 9, 16, 35, 38 and 41

Decision of the Opposition Division: Upheld the opposition in its
entirety

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94 as the Board of Appeal erred in its finding that
there is a likelihood of confusion between the trade marks
concerned.

Decision of the Cancellation Division: Rejection of the request for a
declaration of invalidity

Decision of the Board of Appeal: Dismissal of the appeal

Infringement of Articles 7(1)(b), 7(1)(c), 7(1)(d)
Pleas in law:
and 51(1)(b) of Council Regulation 40/94 as the Board of
Appeal: (i) should have found on the evidence before it that the
registered Community trade mark subject of the application for
a declaration of invalidity was devoid of any distinctive char-
acter; (ii) failed to apply the correct legal test and failed to prop-
erly evaluate the evidence before it; and (iii) should have found
on the evidence before it that the application for the registered
Community trade mark subject of the application for a declara-
tion of invalidity was made in bad faith.