Action brought on 27 January 2012 — Intesa Sanpaolo v OHIM — equinet Bank (EQUITER)

(Case T-47/12)

2012/C 109/42

Language in which the application was lodged: English

Parties

Applicant: Intesa Sanpaolo SpA (Torino, Italy) (represented by: P. Pozzi, G. Ghisletti and F. Braga, lawyers)

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

Other party to the proceedings before the Board of Appeal: equinet Bank AG (Frankfurt am Main, Germany)

Form of order sought

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘EQUITER’, for goods and services in classes 9, 16, 35, 36, 38, 41 and 42 — Community trade mark application No 66707749

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

Mark or sign cited in opposition: Community trade mark registration No 1600816 of the word mark ‘EQUINET’, for services in classes 35, 36 and 38; German trade mark registration No 39962727 of the word mark ‘EQUINET’, for goods and services in classes 9, 35, 36 and 38

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Annulled the decision of the Opposition Division

Pleas in law: Infringement of Articles 42(2) and (3) in conjunction with Article 15(1)(a) of Council Regulation No 207/2009, as the Board of Appeal made a wrong assessment concerning the material submitted in support of the use of the mark, as: (i) there are no sufficient indications on activity, time, place and extent of use of the mark; (ii) there is no sufficient indication concerning the nature of use of the trademark; and (iii) the evidence furnished by the opponent is insufficient to prove that the earlier trade mark was genuinely used in the relevant territory during the period of five years preceding the date of publication of the contested mark.