Action brought on 11 November 2008 - Longevity Health Products v OHIM - Merck (Kids Vits)
(Case T -484/08)
Language in which the application was lodged: German
Parties
Applicant: Longevity Health Products, Inc. (Nassau, Bahamas) (represented by: J. Korab, lawyer)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Other party to the proceedings before the Board of Appeal of OHIM: Merck KGaA (Darmstadt, Germany)
Form of order sought
Declare the action brought by Longevity Health Products, Inc. admissible;
annul the decision of the Fourth Board of Appeal of 28 August 2008 and dismiss the nullity proceedings of Merck KGaA against registration of Community trade mark 003 979 143; and
order the Office for Harmonisation in the Internal Market to pay the costs.
Pleas in law and main arguments
Applicant for a Community trade mark: The applicant.
Community trade mark concerned: Word mark 'Kids Vits' for goods and services in Classes 3, 5 and 35 (Community trade mark No 3 979 143).
Proprietor of the mark or sign cited in the opposition proceedings: Merck KGaA.
Mark or sign cited in opposition: Word mark 'VIDS4KIDS' for goods in Class 5 (mark No 3 128 196).
Decision of the Opposition Division: Upholding of the opposition.
Decision of the Board of Appeal: Dismissal of the appeal.
Pleas in law: Breach of Article 8(1)(b) of Regulation (EC) No 40/94,
1 since there is no likelihood of confusion between the opposing marks.
____________1 - Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).