Action brought on 14 November 2011 - S & S Szlegiel Szlegiel i Wiśniewski v OHIM - Scotch & Soda (SODA)
(Case T-590/11)
Language in which the application was lodged: English
Parties
Applicant: S & S Piotr Szlegiel Jacek Szlegiel i Robert Wiśniewski sp. j. (Gorzów Wielkopolski, Republic of Poland) (represented by: R. Sikorski, adwokat)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Other party to the proceedings before the Board of Appeal: Scotch & Soda BV (Hoofddorp, Netherlands)
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 25 August 2011 in case R 1570/2010-2;
Reject in its entirety the opposition No B1438250;
Order the defendant to register the trade mark applied for; and
Order the defendant to pay the costs of the proceedings.
Pleas in law and main arguments
Applicant for a Community trade mark: The applicant
Community trade mark concerned: The word mark "SODA", for goods in class 25 - Community trade mark application No 6970875
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: Community trade mark registration No 3593498 of the word mark "SCOTCH & SODA", for goods in class 25
Decision of the Opposition Division: Rejected the Community trade mark application in its entirety
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 failed: (i) to appreciate that there were sufficient visual, aural and conceptual differences between the marks, particularly with respect to its analysis of the conceptual meanings of the marks; (ii) to properly circumscribe and analyse the dominant element of the contested signs; and (iii) to properly take into consideration the level of attention of the average consumer of the category of goods concerned.
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