Judgment of the General Court (Fourth Chamber) of 4 May 2011 – Bongrain v OHIM – apetito (APETITO)

(Case T-129/09)

Community trade mark – Opposition proceedings – Application for Community word mark APETITO – Earlier Community word mark apetito – Relative ground for refusal – Likelihood of confusion – Similarity of the goods – Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009)

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 para. 30)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 2 February 2009 (Case R 720/2008‑4) relating to opposition proceedings between apetito AG and Bongrain SA.

Information relating to the case

Applicant for the Community trade mark:	Bongrain SA
Community trade mark sought:	Word mark APETITO for goods in Class 29 – Application No 3470598
Proprietor of the mark or sign cited in the opposition proceedings:	apetito AG
Mark or sign cited in opposition:	Community word mark apetito, registered for goods in Classes 5, 11, 21 29, 30, 37, 39, 41 and 42
Decision of the Opposition Division:	Opposition upheld
Decision of the Board of Appeal:	Appeal dismissed

Operative part

The Court:

1.Dismisses the action;

2. 2. Orders Bongrain SA to pay the costs.