Action brought on 19 February 2010 - Lehning Entreprise v OHIM - Certmedica International (L112)

(Case T-78/10)

Language in which the application was lodged: French

Parties

Applicant: Lehning Entreprise (Sainte-Barbe, France) (represented by: P. Demoly, lawyer)

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

Other party to the proceedings before the Board of Appeal: Certmedica International GmbH (Aschaffenburg, Germany)

Form of order sought

In view of the similarity between the signs and the goods at issue, there is a likelihood of confusion between the marks L.114 and L112 at issue in respect of all the goods in Class 5 covered by their registrations. Consequently, the applicant claims that the Court should annul the contested decision in so far as it dismissed the application of Lehning Entreprise for a declaration of invalidity in respect of the following goods: 'Sanitary preparations' and 'Dietetic foodstuffs concentrates with a shellfish base (including chitosan)', and should uphold the remainder of the decision.

Lastly, and having regard to the circumstances of the case, it would be particularly inequitable for the applicant to bear the non-recoverable costs which it has had to incur in these proceedings that are manifestly unjustified. It therefore claims that the Court should order Certmedica International GmbH to pay it the costs incurred in the proceedings.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: word mark 'L112' for goods in Classes 5 and 29 (Community trade mark No 2 349 728)

Proprietor of the Community trade mark: Certmedica International GmbH

Applicant for the declaration of invalidity: Lehning Entreprise

Trade mark right of applicant for the declaration: the national mark 'L.114' registered in France for goods in Class 5 (No 1 312 700)

Decision of the Cancellation Division: application granted for a declaration of invalidity of the trade mark concerned for the goods in Class 5 in part

Decision of the Board of Appeal: appeal of Certmedica International upheld in part

Pleas in law: Infringement of Articles 8, 52 and 53 of Council Regulation (EC) No 207/2009 on the Community trade mark, since there is a likelihood of confusion between the marks at issue in relation to the goods 'Sanitary preparations' and 'Dietetic foodstuffs concentrates with a shellfish base (including chitosan)'

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