Action brought on 22 November 2011 - Pêra-Grave v OHIM - Fundação De Almeida (QTA S. JOSÉ DE PERAMANCA)

(Case T-602/11)

Language in which the application was lodged: English

Parties

Applicant: Pêra-Grave Sociedade Agrícola, Unipessoal, Lda (Évora, Portugal) (represented by: J. de Oliveira Vaz Miranda Sousa, lawyer)

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

Other party to the proceedings before the Board of Appeal: Fundação Eugénio De Almeida (Évora, Portugal)

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 19 September 2011 in case R 1797/2010-2 with the consequence that the opposition directed against the trade mark applied for will be rejected in its entirety and therefore the registration of the trade mark applied for will be allowed in its entirety; and

Order the defendant to bear its own costs and the costs incurred by the applicant in connection of the present proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark "QTA S. JOSÉ DE PERAMANCA", for goods in class 33 - Community trade mark application No 7291669

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: Portuguese trade mark registration No 283684 of the figurative mark "VINHO PÊRAMANCA TINTO", for goods in class 33; Portuguese trade mark registration No 308864 of the figurative mark "VINHO PÊRAMANCA BRANCO", for goods in class 33; Portuguese trade mark application No 405797 of the figurative mark "PÊRAMANCA", for goods in class 33

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Upheld the opposition and the appeal, annulled the contested decision and rejected the CTM application for all the contested goods

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal: (i) erred in law in diminishing the overall weight of the numerous visual, aural and conceptual dissimilarities between the signs and in increasing and therefore overestimating the overall impact of the only common element they contain, the verbal elements "PERA" and "MANCA"; and (ii) misapplied the principles and the approach established by the General Court in case T-332/05 "TERRANUS/TERRA" to the case sub judice and wrongly considered that the degree of overall similarity between the confronted signs was sufficient to lead to a likelihood of confusion.

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