Judgment of the General Court (Second Chamber) of 17 February 2011 – J & F Participações v OHIM – Plusfood Wrexham (Friboi)
(Case T-324/09)
Community trade mark – Opposition proceedings – Application for the Community figurative mark Friboi – Earlier national word mark FRIBO – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 207/2009 – Genuine use of the earlier mark – Article 42(2) and (3) of Regulation No 207/2009
1. Community trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the earlier mark – Genuine use – Concept – Criteria for assessment (Council Regulation No 207/2009, Art. 42(2) and (3)) (see paras 26-27)
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 (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 45, 69)
Re:
| ACTION brought against the decision of the First Board of Appeal of OHIM of 22 April 2009 (Case R 824/2008‑1), concerning opposition proceedings between Fribo Foods Ltd and Agropecuaria Friboi, Ltda. |
Information relating to the case
Applicant for the Community trade mark: | J & F Participações SA |
Community trade mark sought: | Figurative mark Friboi for goods in Class 29 |
Proprietor of the mark or sign cited in the opposition proceedings: | Plusfood Wrexham Ltd |
Mark or sign cited in opposition: | United Kingdom trade mark registration of the word mark FRIBO for goods in Class 29; United Kingdom trade mark registration of the figurative mark Fribo for goods in Class 29; German trade mark registration of the word mark FRIBO for goods in Class 29; German trade mark registration of the figurative mark FRIBO for goods in Class 29; French trade mark registration of the word mark FRIBO for goods in Class 29; French trade mark registration of the figurative mark FRIBO for goods in Class 29; Italian trade mark registration of the word mark FRIBO for goods in Class 29; Italian trade mark registration of the figurative mark FRIBO for goods in Class 29 |
Decision of the Opposition Division: | Opposition upheld |
Decision of the Board of Appeal: | Appeal partially upheld |
Operative part
The Court:
2. | | Orders J & F Participações SA to pay the costs. |