Action brought on 10 March 2011 - Marszałkowski v OHIM - Mar-Ko Fleischwaren (WALICHNOWY MARKO)

(Case T-159/11)

Language in which the application was lodged: Polish

Parties

Applicant: Marek Marszałkowski (Sokolniki, Poland) (represented by: C. Sadkowski, lawyer)

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

Other party to the proceedings before the Board of Appeal: Mar-Ko Fleischwaren GmbH & Co. KG (Blankenhain, Germany)

Form of order sought

annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 January 2011 (Case No R 760/2010-4) refusing registration of the mark 'Marko Walichnowy' as a Community trade mark in so far as it relates to goods in Class 29: meat, products made from meat and poultry meat, including pies, tripe, sausage with cabbage, meat preserves and products made from meat and vegetables, including bigos, poultry (including packaged poultry), meatballs in a vegetable sauce;

alternatively, amend the contested decision by taking account of the sound basis for registration of the Community trade mark 'Marko Walichnowy' in so far as it relates to the aforementioned goods in Class 29;

order the defendant to pay the costs of the proceedings, including the costs of the applicant's representation in the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: figurative trade mark containing the word element 'Marko Walichnowy' for goods in Class 29 - Application No 007161541

Proprietor of the mark or sign cited in the opposition proceedings: Mar-Ko Fleischwaren GmbH & Co. KG

Mark or sign cited in opposition: Community word mark 'Mar-Ko' for certain goods in Class 29

Decision of the Opposition Division: dismissal of the opposition

Decision of the Board of Appeal: annulment of the decision of the Opposition Division and rejection of the application for the following goods in Class 29: meat, products made from meat and poultry meat, including pies, tripe, sausage with cabbage, meat preserves and products made from meat and vegetables, including bigos, poultry (including packaged poultry), meatballs in a vegetable sauce

Pleas in law: breach of Article 8(1)(b) of Regulation No 207/2009 ¹ in so far as the contested decision establishes a similarity between the trade marks and the possibility that consumers might be misled

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¹ - Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).