Action brought on 3 December 2010 - riha Richard Hartinger Getränke v OHIM - Lidl Stiftung (VITAL&FIT)
(Case T-552/10)
Language in which the application was lodged: German
Parties
Applicant: riha Richard Hartinger Getränke GmbH & Co. Handels-KG (Rinteln, Germany) (represented by: P. Goldenbaum, T. Melchert and I. Rohr, lawyers)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Other party to the proceedings before the Board of Appeal of OHIM: Lidl Stiftung & Co. KG (Neckarsulm, Germany)
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) (OHIM) of 5 October 2010 in Case R 1229/2009-4;
Order OHIM 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 'VITAL&FIT' for goods in Class 32
Proprietor of the mark or sign cited in the opposition proceedings: Lidl Stiftung & Co. KG
Mark or sign cited in opposition: five earlier rights, including the national word mark 'VITAFIT' for goods in Class 32
Decision of the Opposition Division: opposition upheld
Decision of the Board of Appeal: appeal dismissed
Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009
1, as the marks at issue are not so similar that there is a likelihood of confusion, and infringement of rules of procedure in that the Board of Appeal did not itself examine the supposed aural similarity of the marks, did not take account of decisions of OHIM and of the Court, to which the parties referred, did not have regard to those decisions and did not make it clear whether it did in fact take into account only German commercial circles and their views
____________1 - Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).