Action brought on 4 May 2011 - Lidl Stiftung v OHIM - Lactimilk (BELLRAM)

(Case T-237/11)

Language in which the application was lodged: English

Parties

Applicant: Lidl Stiftung & Co. KG (Neckarsulm, Germany) (represented by: T. Träger, lawyer)

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

Other party to the proceedings before the Board of Appeal: Lactimilk, SA (Madrid, Spain)

Form of order sought

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 March 2011 in case R 1154/2009-4; and

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 word mark "BELLRAM", for goods in class 29 - Community trade mark application No 5074281

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: Spanish trade mark registration No 2414439 of the figurative mark "RAM", for goods in class 29; Spanish trade mark registration No 98550 of the figurative mark "Ram", for goods in class 29; Spanish trade mark registration No 151890 of the word mark "RAM", for goods in class 29

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law:

The applicant advances five pleas in law in support of its application.

On the basis of its first plea, the applicant claims that the contested decision infringes Articles 63(2), 75 and 76 of Council Regulation (EC) No 207/2009 (hereinafter "CTMR") and breaches its right to be heard, as the Board of Appeal did not invite the parties to comment on its intent to replace the relevant opposing registration.

By its second plea, the applicant considers that the contested decision infringes Article 41 of CTMR in conjunction with Rule 15(2)(f) of the Implementing Regulation, as the board of Appeal took into account goods that were not properly identified in the notice of opposition and within the deadline for filing the opposition.

By its third plea, the applicant states that the contested decision infringes Articles 42(2), 42(3) and 15 CTMR, as the Board of Appeal did not properly assess the scope of the registered goods against the evidence of use submitted.

By its fourth plea, the applicant claims that the contested decision infringes Articles 76 CTMR in conjunction with Rule 50(1), and Rule 19(1) and (3) of the Implementing Regulation, as the Board of Appeal falsely took into account an enhanced distinctiveness of the earlier mark.

Finally, on the basis of its fifth plea, the applicant considers that the contested decision infringes Article 8(1)(b) of CTMR, as the Board of Appeal falsely assumed a high similarity between the goods. With respect to the similarity between the signs the Board of Appeal failed to assume that the signs are dissimilar or remotely similar owing to the uniform character of "BELLRAM" in the Spanish language. The signs "BELLRAM" and "RAM" are not confusable because the goods are remotely similar and the signs dissimilar or remotely similar.

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