Action brought on 26 March 2009 - Gruener Janura AG v OHIM - Centum Aqua Marketing (HUNDERTWASSER)

(Case T -125/09)

Language in which the application was lodged: German

Parties

Applicant: Gruener Janura AG (represented by: P. Endres, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Centum Aqua Marketing GmbH (Magdeburg, Germany)

Form of order sought

Reject application No 4491891 for the trade mark 'Hundertwasser' for the following goods and services:

Class 20: Goods (not included in other classes) of wood, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, mother-of-pearl, meerschaum and substitutes for all these materials, or of plastics;

Class 30: Sugar, rice, tapioca, sago, artificial coffee; flour and preparations made from cereals, bread, pastry and confectionery; honey, treacle; yeast, baking-powder; salt, mustard; vinegar, sauces (condiments); spices; ice; confectionery, candyfloss;

Class 31: Agricultural, horticultural and forestry products and grains not included in other classes; live animals; seeds, natural plants and flowers; foodstuffs for animals; malt; products from organic farming, flowers, arrangements, plant arrangements;

Class 35: Advertising, marketing concepts;

Class 39: Transport, packaging and storage of goods; travel arrangement, exhibition guides, city and building guides, tourist services, package holidays;

Order the applicant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Centum Aqua Marketing GmbH

Community trade mark concerned: the word mark 'HUNDERTWASSER' for goods and services in Classes 20, 25, 30, 31, 32, 35, 39 and 42 (application No 4 491 891)

Proprietor of the mark or sign cited in the opposition proceedings: the applicant

Mark or sign cited in opposition: the word mark 'FRIEDENSREICH HUNDERTWASSER' for goods and services in Classes 3, 16, 19, 24, 25, 27, 32 and 33 (Community trade mark No 1 825 629) and the word mark 'HUNDERTWASSER' for goods and services in Classes 14, 16, 18, 19, 21, 24, 41 and 42 (Community trade mark No 1 931 393)

Decision of the Opposition Division: partial rejection of the opposition

Decision of the Board of Appeal: annulment of the Opposition Division's decision and partial upholding of the appeal as well as partial rejection of the application

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 as there is a likelihood of confusion between the marks at issue

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