Action brought on 11 January 2008 - Perfetti Van Melle v OHIM - Cloetta Fazer (CENTER SHOCK)

(Case T-16/08)

Language in which the application was lodged: English

Parties

Applicant: Perfetti Van Melle SpA (Lainate, Italy) (represented by: P. Perani and P. Pozzi, lawyers)

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

Other party to the proceedings before the Board of Appeal: Cloetta Fazer AB (Ljungsbro, Sweden)

Form of order sought

Totally alter the decision of the OHIM Fourth Board of Appeal, Case R 149/2006-4, rendered on 7 November 2007 and notified on 9 November 2007;

annul the decision of the OHIM Cancellation Division, rendered on 24 November 2005, ruling on cancellation action No 941 C 973 065;

confirm the validity of Perfetti's CTM registration No 973 065 CENTER SHOCK;

order the defendants to bear the costs of the present proceeding, as well as those of the OHIM invalidity and appeal proceedings.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The word mark 'CENTER SHOCK' for goods in class 30 - Community trade mark No 973 065

Proprietor of the Community trade mark: The applicant

Party requesting the declaration of invalidity of the Community trade mark: Cloetta Fazer AB

Trade mark right of the party requesting the declaration of invalidity: The national word marks 'CENTER' and 'CLOETTA CENTER' for goods in, inter alia, class 30

Decision of the Cancellation Division: Declaration of invalidity of the Community trade mark

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 52(1)(a) of Council Regulation No 40/94, as the conflicting trade marks are globally different in sound, meaning and overall impression, although they have a common element. Furthermore, Cloetta and Perfetti operate, according to the applicant, in different markets, since their products address different needs and different consumers.

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