Action brought on 28 January 2011 - Vermop Salmon v OHIM - Leifheit (Clean Twist)

(Case T-61/11)

Language in which the application was lodged: German

Parties

Applicant: Vermop Salmon GmbH (Gilching, Germany) (represented by: W. von der Osten-Sacken, O. Sude and M. Ring, lawyers)

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

Other party to the proceedings before the Board of Appeal: Leifheit AG (Nassau, 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 19 November 2010 in Case R 671/2010-1;

Declare Community trade mark No 4892642 'Clean Twist' invalid;

Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to bear its own costs and to pay those of the applicant;

In the event that Leifheit AG intervenes in the proceedings, order the intervener to bear its own costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: the word mark 'Clean Twist' for goods in Class 21

Proprietor of the Community trade mark: Leifheit AG

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

Grounds for the application for a declaration of invalidity: the earlier word marks 'TWIX' and 'TWIXTER' for goods in Classes 9, 12, 21, 22 and 25. Infringement of Article 53(1)(a) in conjunction with Article 8(1)(b) of Regulation (EC) No 207/2009.¹

Decision of the Cancellation Division: Rejection of the application for a declaration of invalidity

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 53(1)(a) in conjunction with Article 8(1)(b) of Regulation (EC) No 207/2009 as there is a likelihood of confusion between the marks at issue.

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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).