Action brought on 13 May 2011 - FairWild Foundation v OHIM - Wild (FAIRWILD)

(Case T-247/11)

Language in which the application was lodged: German

Parties

Applicant: FairWild Foundation (Weinfelden, Switzerland) (represented by: P. Neuwald and S. Müller, lawyers)

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

Other party to the proceedings before the Board of Appeal: Rudolf Wild GmbH & Co. KG (Eppelheim, Germany)

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 3 March 2011 in the appeal proceedings in Case R 1014/2010-1;

reject the opposition to registration of international mark No 950 962 'FAIRWILD';

order the defendant and the opponent to pay the applicant's costs of the proceedings, including the proceedings before the Board of Appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: FairWild Foundation.

Community trade mark concerned: Word mark 'FAIRWILD' for goods in classes 3, 5, 29 and 30 - international registration No 950 962.

Proprietor of the mark or sign cited in the opposition proceedings: Rudolf Wild GmbH & Co. KG.

Mark or sign cited in opposition: Community word mark 'WILD' for goods in classes 3, 9, 29, 30 and 32.

Decision of the Opposition Division: Opposition upheld in part.

Decision of the Board of Appeal: Decision of the Opposition Division annulled in part.

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009, as the Board of Appeal erroneously assumed that there was a likelihood of confusion between the opposing marks. The applicant complains that the Board of Appeal (i) wrongly assumed that the meaning of the sign 'WILD' is familiar only to the German and English-speaking public, and (ii) proceeded on the assumption that the term is not descriptive of the goods covered by the mark cited in opposition. On that basis, the Board of Appeal erred in law in ascribing average distinctiveness to the mark cited in opposition and in finding an average degree of similarity between the signs, as a result of which the assessment of the interrelated aspects of the likelihood of confusion had an unfavourable outcome as far as the applicant was concerned.

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