Action brought on 11 Februar 2009 - XXXLutzMarken v OHIM - Natura Selection (Linea Natura Natur hat immer Stil)

(Case T -54/09)

Language in which the application was lodged: German

Parties

Applicant: XXXLutzMarken (Wels, Austria) (represented by: H. Pannen, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Natura Selection SL (Barcelona, Spain)

Form of order sought

Annul the decision of the Second Board of Appeal of OHIM of 28 November 2008 in Case R 1787/2007-2;

order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: XXXLutzMarken

Community trade mark concerned: figurative mark 'LineaNatura Natur hat immer Stil' for goods in Classes 8, 14, 16, 20, 21, 24, 25 and 27 (Registration No 4 626 693)

Proprietor of the mark or sign cited in the opposition proceedings: Natura Selection S.L.

Mark or sign cited in opposition: Figurative mark 'natura selection' (Community trade mark No 2 016 384) for goods and services in Classes 3, 14, 16, 20, 25, 35, 38, 39 and 42, and further Community trade marks and Spanish mark comprising the word 'natura', for goods and services in Classes 3, 14, 16, 20, 21, 24, 25, 27, 28, 35, 39 and 42

Decision of the Opposition Division: Upholding the opposition

Decision of the Board of Appeal: Rejection of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94¹, since there is no likelihood of confusion between the conflicting marks

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¹ - Council Regulation (EC) No 40/941 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1)