Action brought on 19 May 2014 — Comercializadora Eloro v OHIM — Zumex Group (zumex)

(Case T-354/14)

Language in which the application was lodged: Spanish

Parties

Applicant: Comercializadora Eloro, SA (Ecatepec, Mexico) (represented by: J. L de Castro Hermida, lawyer)

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

Other party to the proceedings before the Board of Appeal: Zumex Group, SA (Moncada, Spain)

Form of order sought

The applicant claims that the General Court should:

hold, on the basis of the documents filed in the administrative procedure and those submitted together with the present application, that the applicant has provided sufficient proof of use of its earlier mark ‘JUMEX’ for fruit juices in Class 32;

refuse the registration of the mark applied for ‘ZUMEX’ for all goods in Class 32 on account of the opposing party, who is the applicant in the present proceedings, having proved use of the mark with priority, because of the likelihood of confusion on the part of consumers arising from the coexistence in the market of both marks, given the similarity of the words and their identity in application.

Pleas in law and main arguments

Applicant for a Community trade mark: Zumex Group, SA

Community trade mark concerned: Figurative mark with word element ‘zumex’ for goods in Class 32 — Community trade mark application No 6 845 598

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

Mark or sign cited in opposition: Word mark ‘JUMEX’ for goods in Class 32

Decision of the Opposition Division: Opposition upheld

Decision of the Board of Appeal: Decision of the Opposition Division annulled and opposition rejected

Pleas in law:

Proof of use of the earlier mark;

Infringement of Article 8(1)(b) and (2) of Regulation No 207/2009