Action brought on 26 May 2008 - Market Watch v OHIM - Ares Trading (SEROSLIM)

(Case T-201/08)

Language in which the application was lodged: English

Parties

Applicant: Market Watch Franchise & Consulting, Inc. (Freeport, Bahamas) (represented by: J. E. Korab, lawyer)

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

Other party to the proceedings before the Board of Appeal: Ares Trading, SA (Aubonne, Switzerland)

Form of order sought

The complaint filed by the applicant be admitted;

annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 March 2008 in case R 0805/2007-2 and the application filed by the other party to the proceedings before the Board of Appeal requesting a declaration of invalidity of the Community trade mark concerned be dismissed; and

order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark "SEROSLIM" for goods and services in classes 3, 5 and 35 - application No 4 113 321

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: The word mark "SEROSTIM" for goods in class 5 - Community trade mark 2 405 694

Decision of the Opposition Division: Upheld the opposition with respect to all the goods in class 5 and in respect of "soaps, hair lotions and dentifrices" in class 3

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8 of Council Regulation No 40/94 as the most important aspect in assessing the existence of any likelihood of confusion is the overall impression created by the two trade marks in question on the public concerned. Furthermore, the existence of a likelihood of confusion that would be relevant from the point of view of trade mark law, depends, in this connection, on a large number of circumstances, including, but not limited to, the recognition of the trade mark in question, the associations that the used or registered sign appears to be able to create, as well as the degree of similarity between the mark and the sign or between the goods and services identified.

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