Action brought on 6 October 2011 - Aloe Vera of America v OHIM - Diviril (FOREVER)

(Case T-528/11)

Language in which the application was lodged: English

Parties

Applicant: Aloe Vera of America, Inc. (Dallas, United States) (represented by: R. Niebel and F. Kerl, lawyers)

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

Other party to the proceedings before the Board of Appeal: Diviril-Distribuidora de Viveres do Ribatejo, Lda (Alenquer, Portugal)

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 8 August 2011 in case R 742/2010-4; and

Order the defendant and, as appropriate, the other party to the proceedings before the Board of Appeal 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 "FOREVER", for goods in classes 3, 5, 30, 31 and 32 - Community trade mark application No 5617089

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: Portuguese trade mark registration No 297697 of the figurative mark "4 EVER", for goods in class 32

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal failed: (i) to correctly assess the proof of use provided by the other party to the proceedings before the Board of Appeal; (ii) to correctly identify the aural differences between the opposed trade marks; (iii) to correctly identify the conceptual differences between the trade marks in conflict; and (iv) to correctly identify the visual differences between the opposed trade marks.

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