Action brought on 7 August 2008 — Aldi Einkauf v OHIM — Goya Importaciones y Distribuciones (4 OUT Living)

(Case T-307/08)

(2008/C 260/27)

Language in which the application was lodged: English

Parties

Applicant: Aldi Einkauf GmbH & Co. OHG (Essen, Germany) (represented by: N. Lützenrath, U. Rademacher, L. Kolks, C. Fürsen, lawyers)

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

Other party to the proceedings before the Board of Appeal: Goya Importaciones y Distribuciones SL (Cuarte de Huerva, Spain)

Form of order sought

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘4 OUT Living’ for goods and services in classes 18, 25 and 28

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: Spanish trade mark registration No 2 604 969 of the figurative mark ‘Living & Co’ for goods and services in classes 3, 14, 16, 18, 21, 25, 34 and 35

Decision of the Opposition Division: Upheld the opposition partially

Decision of the Board of Appeal: Dismissal of the appeal

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