Action brought on 17 March 2010 - Lidl Stiftung v OHIM - Vinotasia (VITASIA)

(Case T -124/10)

Language in which the application was lodged: German

Parties

Applicant: Lidl Stiftung & Co. KG (Neckarsulm, Germany) (represented by: M. Schaeffer and A. Marx, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Vinotasia GmbH (Koblenz, Germany)

Form of order sought

annul the decision of the Fourth Board of Appeal of 14 January 2010 in Case R 1054/2008-4;

reject Opposition No B 1 027 947, lodged on 30 June 2006, in so far as it was upheld by the decision of the Opposition Division of 30 March 2008;

order the defendant to pay the costs of the proceedings before the Court of Justice of the European Union and the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs);

in the alternative, stay the proceedings until a final decision is taken on the application for a declaration of invalidity, lodged on 17 March 2010 at the Deutsches Patent- und Markenamt, against the earlier German mark No 302 15 015 "VINOSTASIA"

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: Word mark "VITASIA" for goods in classes 29, 30, 31, 32 and 33 (Application No 4 691 101)

Proprietor of the mark or sign cited in the opposition proceedings: Vinotasia GmbH

Mark or sign cited in opposition: German word mark "VINOTASIA" No 302 15 015 for goods and services in classes 32, 33 and 35

Decision of the Opposition Division: To uphold the opposition in part

Decision of the Board of Appeal: To dismiss the appeal

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009, ¹ in that no likelihood of confusion between the abovementioned marks exists

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¹ - Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).