C_2005296EN.01002601.xml

26.11.2005

Official Journal of the European Union

C 296/26

Action brought on 2 September 2005 — Aqua-Terra Bioprodukt v OHIM

(Case T-330/05)

(2005/C 296/56)

Language in which the application was lodged: German

Parties

Applicant(s): Aqua-Terra Bioprodukt GmbH (Griesheim, Germany) (represented by: P.A. Müller, lawyer)

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

Other party or parties to the proceedings before the Board of Appeal of OHIM: De Ceuster Meststoffen NV (Sint-Katelijne-Waver, Belgium)

Forms of order sought

The applicant claims that the Court should:

—	annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market in appeal proceedings No R0984/2004-1, dated 1 July 2005;

—

in the alternative, set aside and annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market in appeal proceedings No R0984/2004-1, dated 1 July 2005, in so far as ‘biological substances, namely preparations for conditioning, reconstructing and recultivating sewage or for use in sewage treatment plants’ are concerned.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘aqua terra’ for goods in Classes 1 and 3 — Registration No 1 480 243

Proprietor of the mark or sign cited in the opposition proceedings: De Ceuster Meststoffen NV

Mark or sign cited in opposition: The national word mark ‘AQUATERRA’ for goods in Classes 1, 5 and 31

Decision of the Opposition Division: Upholds the opposition which was restricted in relation to the goods in Class 1 and refusal to register all the goods in Class 1

Decision of the Board of Appeal: Dismissal of the applicant's appeal

Pleas in law: The contested decision infringes Article 8(1)(b) of Council Regulation (EC) No 40/94 due to an erroneous assessment of the likelihood of confusion of the two marks in opposition. Consideration was not taken of the individual goods and their similarity as required and a general evaluation was carried out instead.