Action brought on 7 August 2008 - Aldi Einkauf v OHIM - Goya Importaciones y Distribuciones (4 OUT Living)

(Case T-307/08)

Language in which the application was lodged: English

Parties

Applicant: Aldi Einkauf GmbH & Co. OHG (Essen, Germany) (represented by: N. Lützenrath, U. Rademacher, L. Kolks, C. Fürsen, lawyers)

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

Other party to the proceedings before the Board of Appeal: Goya Importaciones y Distribuciones SL (Cuarte de Huerva, Spain)

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 7 May 2008 in case R 1199/2007-1; and

Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark "4 OUT Living" for goods and services in classes 18, 25 and 28

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: Spanish trade mark registration No 2 604 969 of the figurative mark "Living & Co" for goods and services in classes 3, 14, 16, 18, 21, 25, 34 and 35

Decision of the Opposition Division: Upheld the opposition partially

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 as the Board of Appeal erred in its finding that there is a risk of confusion between the trade marks concerned.

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