Action brought on 18 December 2008 — mPAY24 v OHIM — Ultra (MPAY)

(Case T-557/08)

(2009/C 55/65)

Language in which the application was lodged: English

Parties

Applicant: mPAY24 GmbH (Vienna, Austria) (represented by: H. Z. Zeiner, lawyer)

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

Other party to the proceedings before the Board of Appeal: Ultra d.o.o. Proizvodnja elektronskih naprav (Zagorje ob Savi, Slovenia)

Form of order sought

Pleas in law and main arguments

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

Community trade mark concerned: The figurative mark ‘MPAY’, for goods and services in classes 9, 35, 36, 37, 38 and 42 — application No 3 587 896

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

Mark or sign cited: Community trade mark registration No 2 061 656 of the word mark ‘MPAY24’ for goods and services in classes 9, 16, 35, 36 and 38; Austrian trade mark registration No 200 373 of the word mark ‘MPAY24’ for goods and services in classes 9, 16, 35, 36 and 38.

Decision of the Opposition Division: Rejected the trade mark application in its entirety

Decision of the Board of Appeal: Partial dismissal of the appeal

Pleas in law: Infringement of Article 8(1) and (4) of Council Regulation 40/94 as the Board of Appeal wrongly assessed the likelihood of confusion between the trade marks concerned.