Source: EURLEX
Language: en
Format: md

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| 11.3.2006 | EN | Official Journal of the European Union | C 60/40 |

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Action brought on 6 December 2005 — Gateway/OHIM

(Case T-434/05)

(2006/C 60/78)

Language in which the application was lodged: English

Parties

Applicant: Gateway Inc. (Irvine, USA) [represented by: C. Jones, P. Massey, Solicitors]

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

Other party to the proceedings before the Board of Appeal: Fujitsu Siemens Computers GmbH (Munich, Germany)

Form of order sought

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| — | Order that Decision No 1068/2004 of the First Board of Appeal of the Office of 14 September 2005 (Case R 1068/2004-1) be annulled and that the applicant's opposition to Community trade mark application No 2 190 627 in opposition proceedings No B 502 148 be allowed in its entirety, and; |

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| — | Order that the Office pay the applicant's costs. |

Pleas in law and main arguments

Applicant for the Community trade mark: Fujitsu Siemens Computers GmbH

Community trade mark concerned: The word mark ‘ACTIVY Media Gateway’ for goods and services in classes 9, 35, 38 and 42 — application No 2 190 627

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

Mark or sign cited: The national and Community word marks and figurative marks ‘GATEWAY’, ‘GATEWAY 2000’, ‘GATEWAY.NET’, ‘GATEWAY PROFILE’ and ‘GATEWAY ASTRO’ for goods and services in classes 9, 16, 35, 36, 37 and 38

Decision of the Opposition Division: Opposition rejected in its entirety

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) and Article 8(5) of Council Regulation No 40/94 as the Board of Appeal defined the relevant consumers wrongly and erred in the assessment of the trade mark applied for. Further the applicant claims that the Board of Appeal disregarded the reputation and well-known character of the earlier marks and that, contrary to what the Board of Appeal held, the earlier marks are similar to the mark applied for.

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