Action brought on 26 July 2011 - Masottina v OHIM - Bodegas Cooperativas de Alicante (CA' MARINA)

(Case T-393/11)

Language in which the application was lodged: English

Parties

Applicant: Masottina SpA [Conegliano (TV), Italy] (represented by: N. Schaeffer, lawyer)

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

Other party to the proceedings before the Board of Appeal: Bodegas Cooperativas de Alicante, trading as Coop. V. BOCOPA (Alicante, Spain)

Form of order sought

Annul and rescind the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 May 2011 in case R 518/2010-1, as well as the decision of the Opposition Division of 2 February 2010

Decline and reject the action formed by Bodegas Cooperativas de Alicante, Coop. V. BOCOPA, and by which it opposed the registration of the trademark "CA' MARINA", and admit the application for registration of the Community trademark No 6375216 to which Masottina SpA shall be entitled; and

Sentence Bodegas Cooperativas de Alicante, Coop. V. BOCOPA, to payment of all court and related costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark "CA' MARINA", for goods in class 33 - Community trade mark application No 6375216

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 in opposition: Community trade mark registration No 1796374 of the word mark "MARINA ALTA", for goods in class 33

Decision of the Opposition Division: Rejected the CTM application for all the goods

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94, as the Board of Appeal erroneously applied the above mentioned Article: (i) as regards the absence or at least an insufficient determination and distinction of the trademark "MARINA ALTA"; (ii) as there is no existence of any risk of confusion in respect of the concerned signs; and (iii) regarding the lacking consideration that there does not exist any identity of the merchandises, their respective channels of distribution and the public of reference.

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