Action brought on 30 November 2011 - PICO Food v OHIM - Sobieraj (MILANÓWEK CREAM FUDGE)

(Case T-623/11)

Language in which the application was lodged: English

Parties

Applicant: PICO Food GmbH (Tamm, Germany) (represented by: M. Douglas, lawyer)

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

Other party to the proceedings before the Board of Appeal: Bogumit Sobieraj (Milanówek, Poland)

Form of order sought

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 8 September 2011 in case R 553/2010-1;

Order the defendant to bear the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark "MILANÓWEK CREAM FUDGE", for goods in class 30 - Community trade mark application No 6342455

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited in opposition: German trade mark registration No 30522224 of the figurative mark representing a cow, for goods in class 30; German trade mark registration No 30523439 of the figurative mark "Original Sahne Muh-Muhs HANDGESCHNITTEN HANDGEWICKELT", for goods in class 30; German trade mark registration No 30702751 of the figurative mark "Original Sahne Muh-Muhs HANDGESCHNITTEN HANDGEWICKELT", for goods in class 30; German trade mark registration No 30702748 of the figurative mark "Original Sahne Muh-Muhs HANDGESCHNITTEN HANDGEWICKELT", for goods in class 30; German trade mark registration No 30700574 of the figurative mark "SAHNE TOFFEE LUXURY CREAM FUDGE", for goods in class 30

Decision of the Opposition Division: Rejected the opposition in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal misinterpreted the general principles laid down by the European Courts and denied the existence of likelihood of confusion between the opposition trademarks and the contested application. Infringement of Article 76(1) of Council Regulation No 207/2009, as the Board of Appeal based the decision on facts which have not been forwarded by the parties to the proceedings.

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