Action brought on 27 September 2011 - BTL Diffusion v OHIM - dm-drogerie markt (babyTOlove)

(Case T-518/11)

Language in which the application was lodged: English

Parties

Applicant: BTL Diffusion (Saint Cloud, France) (represented by: A. Berendes, lawyer)

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

Other party to the proceedings before the Board of Appeal: dm-drogerie markt GmbH & Co. KG (Karlsruhe, Germany)

Form of order sought

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 8 July 2011 in case R 883/2010-2 to the extend that it: (i) upheld the opposition and rejected the contested Community trade mark application for "surgical medical, dental and veterinary apparatus and instruments, orthopaedic articles; suture materials" in class 10 and "clothing, footwear headgear" in class 25, and (ii) dismissed the applicant's request to annul the contested decision on a point not raised in the appeal to the extent that it upheld the opposition for "games and playthings; gymnastic and porting articles not included in other classes" in class 28; and

Confirm the said decision for "artificial limbs, eyes and teeth" in class 10 and "decorations for Christmas trees" in class 28.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark "babyTOlove", for goods in classes 10, 25 and 28 - Community trade mark application No 7104219

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

Mark or sign cited in opposition: International trade mark registration No 935598 of the word mark "babylove", for goods in classes 3, 5, 8, 9, 10, 11, 12, 16, 18, 20, 21, 24, 25, 26, 28, 29, 30 and 32; International trade mark registration No 979365 of the word mark "Baby Love", for goods in classes 3, 5, 8, 9, 10, 11, 12, 16, 18, 20, 21, 24, 25, 26, 28, 29, 30 and 32

Decision of the Opposition Division: Upheld the opposition for part of the contested goods

Decision of the Board of Appeal: Partially annulled the decision of the Opposition Division; upheld the opposition and rejected the contested Community trade mark application for part of the goods in class 10 and 25; dismissed the appeal for the remainder

Pleas in law: Infringement of Council Regulation No 207/2009, as the Board of Appeal incorrectly assessed likelihood of confusion.

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