Action brought on 7 October 2011 - Chivas v OHIM - Glencairn Scotch Whisky (CHIVALRY)

(Case T-530/11)

Language in which the application was lodged: English

Parties

Applicant: Chivas Holdings (IP) Ltd (Renfrewshire, United Kingdom) (represented by: A. Carboni, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Glencairn Scotch Whisky Co. Ltd (Glasgow, United Kingdom)

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 14 July 2011 in case R 2334/2010-1, and remit the application to OHIM to allow it to proceed; and

Order the defendant and any intervening parties in this appeal to bear their own costs and those of the applicant, incurred for these proceedings and those of the appeal procedure before the Board of Appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark "CHIVALRY", for goods and services in classes 33, 35 and 41 - Community trade mark application No 6616593

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: United Kingdom trade mark registration No 1293610 of the figurative mark "CHIVALRY", for goods in class 33; United Kingdom trade mark registration No 2468527 of the figurative mark "CHIVALRY SPECIAL RESERVE SCOTCH WHISKY", for goods in class 33; Non-registered United Kingdom trade mark of the word "CHIVALRY", used in the course of trade in respect of "Whisky"

Decision of the Opposition Division: Partly upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 8(1)(b), 76(1) and 75 of Council Regulation No 207/2009, as the Board of Appeal: (i) wrongly made a finding of fact as to the characteristics of the relevant public and failed to state the reasons for making the said finding; (ii) in the alternative to ground 1, having found that the relevant consumer is "particularly brand-conscious and brand-loyal", incorrectly failed to appreciate that such characteristics would increase the attentiveness of the relevant consumer and accordingly reduce the likelihood of confusion occurring; (iii) failed to take into account of important guidance laid down by the Court of Justice and took the wrong approach when comparing the marks; (iv) wrongly identified the word "CHIVALRY" as the visually dominant element of the earlier mark and incorrectly concluded that the othe5 figurative and word elements play a secondary role; (v) wrongly assumed that the aural comparison of the marks could be approached in the same way as the visual comparison; and (vi) incorrectly assessed likelihood of confusion.

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