Action brought on 1 November 2010 - Fruit of the Loom v OHIM - Blueshore Management (FRUIT)

(Case T-514/10)

Language in which the application was lodged: English

Parties

Applicant: Fruit of the Loom, Inc. (Bowling Green, USA) (represented by: S. Malynicz, Barrister, and V. G. Marsland, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Blueshore Management SA (Cernusco Sul Naviglio, Italy)

Form of order sought

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 August 2010 in case R 1686/2008-4; and

Order the defendant and the other party to the proceedings before the Board of Appeal to bear the costs of the proceedings.

Pleas in law and main arguments

Registered Community trade mark in respect of which an application for revocation has been made: The word mark "FRUIT" for goods in classes 18, 24 and 25 - Community trade mark registration No 745216

Proprietor of the Community trade mark: The applicant

Party applying for revocation: The other party to the proceedings before the Board of Appeal

Decision of the Cancellation Division: Revoked the Community trade mark in part

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The applicant claims that the contested decision infringes Article 15(1) of Council Regulation No 207/2009, as the Board of Appeal failed to take account of (i) the presentation and significance of the word "FRUIT" within the marks shown in the proprietor's evidence of use, (ii) the evidence that the proprietor informally marketed its products under the name "FRUIT", often using that mark verbally in dealings and transactions with its customers, and (iii) the evidence that the proprietor had used the mark "FRUIT" as part of its marketing website.

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