Action brought on 11 August 2008 - REWE-Zentral v OHIM - Grupo Corporativo Teype (Solfrutta)

(Case T-331/08)

Language in which the application was lodged: English

Parties

Applicant: REWE-Zentral AG (Cologne, Germany) (represented by: A. Bognár and M. Kinkeldey, lawyers)

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

Other party to the proceedings before the Board of Appeal: Grupo Corporativo Teype, SL (Madrid, Spain)

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 21 May 2008 in case R 1679/2007-2; and

Order the defendant 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 "Solfrutta" for goods in classes 29, 30 and 32

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: Community trade mark registration No 1 687 722 of the word mark "FRUTISOL" for goods in class 32; Spanish trade mark registration No 2 018 327 of the word mark "FRUTISOL" for goods in class 32

Decision of the Opposition Division: Upheld the opposition partially

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 as the Board of Appeal erred in not taking into account the alleged weak distinctiveness of the earlier trade marks. Likewise, when assessing only the similarity of the single elements of the trade marks concerned, the Board of Appeal did not sufficiently take into account that the most relevant aspect in the framework of such assessment is the overall impression conveyed by the trade marks concerned.

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