Action brought on 24 June 2011 - Wessang v OHIM - Greinwald (star foods)

(Case T -333/11)

Language in which the application was lodged: French

Parties

Applicant: Nicolas Wessang (Zimmerbach, France) (represented by: A. Grolée, lawyer)

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

Other party to the proceedings before the Board of Appeal: Greinwald GmbH (Kempten, Germany)

Form of order sought

Annul the decision of the Board of Appeal of OHIM of 15 April 2011;

Declare and hold that OHIM is to adopt the measures required to comply with the present judgment annulling the abovementioned decision and therefore uphold the opposition brought by Mr Nicolas Wessang on 26 September 2005 against the application for registration of the mark STAR FOODS + design No 4 105 615;

Order Greinwald GmbH and OHIM jointly and severally, and in solidum, to pay all the costs and expenses incurred by Mr Nicolas Wessang in the opposition proceedings, the appeal proceedings and the present proceedings;

Order Greinwald GmbH to pay all the cost and expenses which it has incurred in the opposition proceedings, the appeal proceedings and the present proceedings;

Order OHIM to pay all the cost and expenses which it has incurred in the opposition proceedings, the appeal proceedings and the present proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Greinwald GmbH.

Community trade mark concerned: Figurative mark 'star foods' for goods in Classes 29, 30 and 32 - application for registration No 4 105 615.

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

Mark or sign cited in opposition: Community figurative and word marks 'STAR SNACKS' for goods in Classes 29, 30 and 31.

Decision of the Opposition Division: Upholding the opposition.

Decision of the Board of Appeal: Rejection of the opposition; decision taken following the judgment of the General Court of 11 May 2010 in Case T-492/08 Wessang v OHIM - Greinwald (star foods).

Pleas in law: The applicant submits that the General Court held that there was a likelihood of confusion between the two marks at issue and that, therefore, the Board of Appeal had limited powers following the judgment of the General Court. The applicant thus submits that the Board of Appeal exceeded its powers in re-trying the matter in its entirety.

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