Judgment of the General Court (Sixth Chamber) of 24 March 2011 – XXXLutz Marken v OHIM – Natura Selection (Linea Natura Natur hat immer Stil)

(Case T-54/09)

Community trade mark – Opposition proceedings – Application for Community figurative mark Linea Natura Natur hat immer Stil – Earlier Community figurative mark natura selection – Relative ground for refusal – Likelihood of confusion – Similarity of signs – Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009)

1.                     Community trade mark – Definition and acquisition of the Community trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Similarity of the marks concerned – Criteria for assessment – Complex mark (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 38, 41, 43-44)

2.                     Community trade mark – Definition and acquisition of the Community trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Likelihood of confusion with the earlier mark – Similarity of the marks concerned – Whether conceptual differences may neutralise visual or aural similarities – Conditions (Council Regulation No 40/94, Art. 8(1)(b)) (see para. 61)

3.                     Community trade mark – Definition and acquisition of the Community trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Likelihood of confusion with the earlier mark (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 71-74)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 28 November 2008 (Case R 1787/2007-2) relating to opposition proceedings between Natura Selection, SL and XXXLutz Marken GmbH.

Information relating to the case

Applicant for the Community trade mark:	XXXLutz Marken GmbH
Community trade mark sought:	Figurative mark Linea Natura Natur hat immer Stil for goods in Classes 8, 14, 16, 20, 21, 24, 25 and 27 – Registration No 4626693
Proprietor of the mark or sign cited in the opposition proceedings:	Natura Selection, SL
Mark or sign cited in opposition:	Figurative mark natura selection for goods and services in Classes 3, 14, 16, 20, 25, 35, 38, 39 and 42, and further Community trade marks and Spanish marks containing the word ‘natura’, for goods and services in Classes 3, 14, 16, 20, 21, 24, 25, 27, 28, 35, 39 and 42
Decision of the Opposition Division:	Opposition upheld
Decision of the Board of Appeal:	Appeal dismissed

Operative part

The Court:

1. 1. Dismisses the action;

2.Orders XXXLutz Marken GmbH to pay the costs.