Action brought on 21 June 2010 - Wesergold Getränkeindustrie v OHIM - Lidl Stiftung (WESTERN GOLD)

(Case T -278/10)

Language in which the application was lodged: German

Parties

Applicant: Wesergold Getränkeindustrie GmbH & Co. KG (Rinteln, Germany) (represented by: P. Goldenbaum, I. Rohr und T. Melchert, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Lidl Stiftung & Co. KG (Neckarsulm, Germany)

Form of order sought

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 24 March 2010 in Case R 770/2009-1;

Order OHIM to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Lidl Stiftung & Co KG.

Community trade mark concerned: Word mark WESTERN GOLD for goods in Class 33.

Proprietor of the mark or sign cited in the opposition proceedings: Wesergold Getränkeindustrie GmbH & Co. KG

Mark or sign cited in opposition: a national and Community word mark WeserGold for goods in Classes 29, 31 and 32; a national and international word mark Wesergold for goods in Classes 29, 31 and 32 und a national word mark WESERGOLD for goods in Class 32.

Decision of the Opposition Division: Opposition upheld.

Decision of the Board of Appeal: Appeal allowed, decision of the Opposition Division annulled.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009¹, as there is a likelihood of confusion between the marks at issue, infringement of Article 64(1) of Regulation (EC) No 207/2009, because the Board of Appeal did not remit the case or examine the substance of the opposition, also infringement of Article 75(2) of Regulation (EC) No 207/2009 on the basis of infringement of the applicant's right to be heard, also infringement of Article 75(1) of Regulation (EC) No 207/2009 because the Board of Appeal failed to state the reasons for its decision.

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¹ - Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).).