Action brought on 12 July 2011 - Arla Foods v OHIM - Artax (Lactofree)

(Case T-364/11)

Language in which the application was lodged: English

Parties

Applicant: Arla Foods AMBA (Viby J, Denmark) (represented by: J. Hansen, lawyer)

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

Other party to the proceedings before the Board of Appeal: Artax Beteiligungs- und Vermögensverwaltungs AG (Linz, Austria)

Form of order sought

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 April 2011 in case R 1357/2009-2, and Community trade mark registration No 4647533 be declared invalid for goods in classes 5, 29, 30 and 32 in accordance with the decision of the Cancellation Division of 11 September 2009; and

Order the defendant and the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings before the Cancellation Division, before the Board of Appeal and before the General Court.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The figurative mark "Lactofree", for goods in classes 5, 29, 30 and 32 - Community trade mark registration No 4647533

Proprietor of the Community trade mark: The other party to the proceedings before the Board of Appeal

Applicant for the declaration of invalidity of the Community trade mark: The applicant

Grounds for the application for a declaration of invalidity: The party requesting the declaration of invalidity grounded its request pursuant to Articles 53(1)(a) and 8(1)(b) of Council Regulation (EC) No 207/2009, which was based on the earlier Community trade mark registration No 4532751 for the figurative mark (in colour) "lactofree", for goods in class 29

Decision of the Cancellation Division: Upheld the cancellation for a part of the goods

Decision of the Board of Appeal: Annulled the decision of the Cancellation Division and dismissed the request for a declaration of invalidity

Pleas in law: Infringement of Articles 53(1)(a) and 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal erred in its evaluation of the comparison of the signs and thus in the overall assessment as to the likelihood of confusion between the figurative marks "lactofree" and "Lactofree".

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