Action brought on 2 April 2009 - Bongrain v OHIM - Apetito (APETITO)

(Case T-129/09)

Language in which the application was lodged: English

Parties

Applicants: Bongrain SA (Viroflay, France) (represented by: C. Hertz-Eichenrode, lawyer)

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

Other party to the proceedings before the Board of Appeal: Apetito AG (Rheine, Germany)

Form of order sought

Set aside the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 2 February 2009 in case R 720/2008-4; and

Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark "APETITO", for goods in class 29 - application No 3 470 598

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: Community trade mark registration of the word mark "apetito" for goods in classes 5, 11, 21 29, 30, 37, 39, 41 and 42

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 40/94¹ (which became Article 8(1)(b) of Council Regulation 207/2009) as the Board of Appeal erred in its finding that there is similarity of goods and hence likelihood of confusion between the trade marks concerned.

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