Action brought on 29 July 2011 - Nutrichem Diät + Pharma v OHIM - Gervais Danone (Active)

(Case T-414/11)

Language in which the application was lodged: German

Parties

Applicant: Nutrichem Diät + Pharma GmbH (Roth, Germany) (represented by: D. Jochim and R. Egerer, lawyers)

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

Other party to the proceedings before the Board of Appeal: Compagnie Gervais Danone (Levallois Perret, France)

Form of order sought

The applicant claims that the Court should:

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 May 2011 in Case R 683/2010-1;

Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant.

Community trade mark concerned: the figurative mark containing the word element 'Active' for goods in Classes 5, 29 and 32 - application No 3 423 316.

Proprietor of the mark or sign cited in the opposition proceedings: Compagnie Gervais Danone.

Mark or sign cited in opposition: the national word mark 'ACTIVIA' for goods in Classes 5, 29, 30 and 32.

Decision of the Opposition Division: the opposition was upheld.

Decision of the Board of Appeal: the appeal was dismissed.

Pleas in law: Infringement (i) of Article 76 of Regulation No 207/2009 in conjunction with Rule 50(1) and Rule 19(1) and (3) of Regulation No 2868/95 as the Board of Appeal incorrectly assumed that the earlier mark has average distinctive character; (ii) of Article 8(1)(b) of Regulation No 207/2009 as there is no likelihood of confusion between the marks at issue; and (iii) of Article 76 of Regulation No 207/2009 as the parallel decisions of the German Patent and Trade Mark Office and of other national authorities, cited by the applicant, were not taken into account when the defendant took its decision.

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