Action brought on 8 May 2007 - Red Bull v OHIM - Grupo Osborne (TORO)

(Case T-165/07)

Language in which the application was lodged: English

Parties

Applicant: Red Bull GmbH (Fuschl am See, Austria) (represented by: H. O'Neill, Solicitor, V. von Bomhard and A. Renck, lawyers)

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

Other party to the proceedings before the Board of Appeal: Grupo Osborne SA (El Puerto de Santa Maria, 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 20 February 2007 in case No R 147/2005-4; and

order that the costs of the proceedings be borne by the defendant.

Pleas in law and main arguments

Applicant for the Community trade mark: Grupo Osborne SA

Community trade mark concerned: The figurative mark 'TORO' for products and services in classes 32, 33 and 42 - application No 1 500 917

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited: The national word marks 'TORO ROSSO' and 'TORO ROJO' for products in class 32 as well as national, international and Community word and figurative marks containing the word 'BULL' on its own or in combination with other words for goods and services in classes 32, 33 and 42

Decision of the Opposition Division: Opposition upheld for all the contested goods and services with the exception of 'providing of temporary accommodation'

Decision of the Board of Appeal: Annulment of the Opposition Division's decision insofar as it upholds the opposition with regard to 'beers' (class 32), 'alcoholic beverages, except wine and beer' (class 33) and 'providing of food and drink, including bars, snack-bars, restaurants, cafeterias, public houses, canteens and wine bars' (class 42); the registration of the Community trade mark applied for can proceed for these products and services

Pleas in law: Violation of Article 73, second sentence, of Council Regulation No 40/94, as the Board of Appeal did not set out clearly the basis of its decision in that it did not fully define the material submitted by the parties.

Furthermore, a violation of Article 8(1)(b) of the regulation, as the Board of Appeal excluded the relevance of the reputation despite the conceptual identity of the conflicting marks and the reputation of the earlier marks.

Finally, a violation of Article 8(5) of the regulation, as the Board of Appeal applied the assumption that the conflicting trade marks must be confusingly similar while it, according to the applicant, is sufficient that the consumer may 'establish a link' between the two marks.

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