Action brought on 20 September 2006 - Lee/DE v OHIM - Cooperativa Italiana di Ristorazione (PIAZZA del SOLE)

(Case T-265/06)

Language in which the application was lodged: French

Parties

Applicant: Sara Lee/DE NV (Utrecht, the Netherlands) (represented by: C. Hollier-Larousse, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Cooperativa Italiana di Ristorazione Soc. coop.rl

Form of order sought

annul and amend the decision of the Second Board of Appeal of OHIM in so far as it confirmed the rejection of the partial opposition lodged by the applicant against the application for the Community mark 'PIAZZA del SOLE' No 1 518 901 and the rejection of Opposition No B 337 081;

consequently, dismiss, in part, the registration of the Community mark 'PIAZZA del SOLE' No 1 518 901, in so far as it designates the goods in Classes 21, 29, 30 and 42;

order OHIM to pay all the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Cooperativa Italiana di Ristorazione Soc. coop.rl

Community trade mark concerned: Word mark 'PIAZZA del SOLE' for goods and services in Classes 16, 21, 25, 29, 30, 35, 36 and 42 - Application No 1 518 901

Proprietor of the mark or sign cited in the opposition proceedings: Applicant

Mark or sign cited in opposition: National and international word marks 'PIAZZA' and 'PIAZZA D'ORO' for goods in Classes 21, 29, 30 and 42

Decision of the Opposition Division: Opposition rejected

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Breach of Article 8(1)(b) of Regulation No 40/94 ¹ in so far as the Board of Appeal, in the contested decision, made a number of errors in considering that there was little distinctiveness as to the element common to the signs in question, in so far as it did not draw the necessary conclusions from its finding that the elements 'D'ORO' and 'DEL SOLE' are common words and in so far as it considered that the differences between the marks prevailed over the way the marks were perceived.

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¹ - Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).