Action brought on 18 August 2009 - J & F Participações v OHIM - Fribo Foods (Friboi)

(Case T-324/09)

Language in which the application was lodged: English

Parties

Applicants: J & F Participações SA (Sorocaba, Brazil) (represented by: A. Fernández Fernández-Pacheco, lawyer)

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

Other party to the proceedings before the Board of Appeal: Fribo Foods Ltd (Wrexham, United Kingdom)

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 22 April 2009 in case R 824/2008-1; and

Order the defendant and the other party to the proceedings before the Board of Appeal to bear the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark "Friboi", for goods in class 29

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: 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: Upheld the opposition

Decision of the Board of Appeal: Allowed the appeal in part

Pleas in law: Infringement of Article 8(1)(b) Council Regulation 207/2009 as the Board of Appeal wrongly held that there was a likelihood of confusion between the trade marks concerned; infringement of Article 42 Council Regulation 207/2009 as the Board of Appeal erred when taking into account evidence for proof of use submitted by the other party to the proceedings before the Board of Appeal which did not meet the requirements of the said legal provision and did not show place, time, extent and nature of use.

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