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8.3.2008 |
EN |
Official Journal of the European Union |
C 64/59 |
Action brought on 11 January 2008 — Perfetti Van Melle v OHIM — Cloetta Fazer (CENTER SHOCK)
(Case T-16/08)
(2008/C 64/96)
Language in which the application was lodged: English
Parties
Applicant: Perfetti Van Melle SpA (Lainate, Italy) (represented by: P. Perani and P. Pozzi, lawyers)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Other party to the proceedings before the Board of Appeal: Cloetta Fazer AB (Ljungsbro, Sweden)
Form of order sought
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Totally alter the decision of the OHIM Fourth Board of Appeal, Case R 149/2006-4, rendered on 7 November 2007 and notified on 9 November 2007; |
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annul the decision of the OHIM Cancellation Division, rendered on 24 November 2005, ruling on cancellation action No 941 C 973 065; |
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confirm the validity of Perfetti's CTM registration No 973 065 CENTER SHOCK; |
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order the defendants to bear the costs of the present proceeding, as well as those of the OHIM invalidity and appeal proceedings. |
Pleas in law and main arguments
Registered Community trade mark subject of the application for a declaration of invalidity: The word mark ‘CENTER SHOCK’ for goods in class 30 — Community trade mark No 973 065
Proprietor of the Community trade mark: The applicant
Party requesting the declaration of invalidity of the Community trade mark: Cloetta Fazer AB
Trade mark right of the party requesting the declaration of invalidity: The national word marks ‘CENTER’ and ‘CLOETTA CENTER’ for goods in, inter alia, class 30
Decision of the Cancellation Division: Declaration of invalidity of the Community trade mark
Decision of the Board of Appeal: Dismissal of the appeal
Pleas in law: Infringement of Article 52(1)(a) of Council Regulation No 40/94, as the conflicting trade marks are globally different in sound, meaning and overall impression, although they have a common element. Furthermore, Cloetta and Perfetti operate, according to the applicant, in different markets, since their products address different needs and different consumers.