Action brought on 19 October 2011 - MIP Metro v OHIM  Real Seguros (real,- BIO)

(Case T-549/11)

Language in which the application was lodged: English

Parties

Applicant: MIP Metro Group Intellectual Property GmbH & Co. KG (Düsseldorf, Germany) (represented by: J. Plate and R. Kaase, lawyers)

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

Other party to the proceedings before the Board of Appeal: Real Seguros, SA (Porto, Portugal)

Form of order sought

Stay the proceedings until the final decision of the Portuguese Trademark Office on the request of revocation which has been filed by the applicant against the earlier Portuguese trademark registrations No 249791, No 249793 and No 254390; In case that the request for the stay of proceedings is not granted, to continue the proceeding and to;

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 August 2011 in case R 115/2011-4; and

Order the defendant to pay the costs, including the costs of the appeal proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The international trade mark registration No W 983684 of the figurative mark "real,- BIO", in green, white and brown, for services in class 36

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 249791 of the word mark "REAL", for services in class 36; Portuguese trade mark registration No 249793 of the word mark "REAL SEGUROS", for services in class 36; Portuguese figurative mark registration No 254390 comprising the word element "REAL", for services in class 36; various unregistered rights claimed to be protected in all Member States or in Portugal

Decision of the Opposition Division: Upheld the opposition

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 wrongly assumed that there would be a likelihood of confusion between the applied mark and the opposed marks.

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