# C_2009006EN.01003801.xml

| 10.1.2009 | EN | Official Journal of the European Union | C 6/38 |
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10.1.2009

EN

Official Journal of the European Union

C 6/38

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Action brought on 22 October 2008 — Companhia Muller de Bebidas v OHIM — Missiato Industria e Comercio (61 A NOSSA ALEGRIA)

(Case T-472/08)

(2009/C 6/75)

Language in which the application was lodged: English

Parties

Applicant: Companhia Muller de Bebidas (Pirassununga, Brazil) (represented by: G. Da Cunha Ferreira and I. Bairrão, lawyers)

Applicant:

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

Defendant:

Other party to the proceedings before the Board of Appeal: Missiato Industria e Comercio Lda (Santa Rita do Passa Quatro, Brazil)

Other party to the proceedings before the Board of Appeal:

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 July 2008 in case R 1687/2007-1, inasmuch as it upheld the decision allowing the registration of the Community trade mark concerned; |
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Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 July 2008 in case R 1687/2007-1, inasmuch as it upheld the decision allowing the registration of the Community trade mark concerned;

| — | Declare the registration of the Community trade mark concerned invalid for all goods protected, on the basis that there is a likelihood of confusion with the trade marks cited in the opposition proceedings; and |
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Declare the registration of the Community trade mark concerned invalid for all goods protected, on the basis that there is a likelihood of confusion with the trade marks cited in the opposition proceedings; and

| — | Order the defendant and the other party to the proceeding before the Board of Appeal to pay the costs. |
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Order the defendant and the other party to the proceeding before the Board of Appeal to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The other party to the proceedings before the Board of Appeal

Applicant for the Community trade mark:

Community trade mark concerned: The figurative mark ‘61 A NOSSA ALEGRIA’ for goods in class 33

Community trade mark concerned:

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

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

Mark or sign cited: Portuguese trade mark registration No 273 105 of the figurative mark ‘CACHAÇA 51’ for goods in class 33; Portuguese trade mark registration No 331 952 of the figurative mark ‘CACHAÇA 51’ for goods in class 33; Benelux trade mark registration No 576 901 of the figurative mark ‘CACHAÇA 51’ for goods in classes 32 and 33; Danish trade mark registration No VR 1998 03649 of the figurative mark ‘CACHAÇA 51’ for goods in class 33; United Kingdom trade mark registration No 2 248 316 of the series of figurative marks ‘CACHAÇA 51’ for goods in class 33; Spanish trade mark registration No 2 354 943 of the figurative mark ‘CACHAÇA 51’ for goods in class 33; German trade mark registration No 30 071 545 of the figurative mark ‘CACHAÇA 51’; Austrian trade mark registration No 161 564 of the figurative mark ‘CACHAÇA 51’ for goods in class 33; Portuguese well-known figurative trade mark ‘CACHAÇA 51’ for goods in class 33; Portuguese well-known word trade mark ‘CACHAÇA 51’ for goods in class 33.

Mark or sign cited:

Decision of the Opposition Division: Rejected the opposition in its entirety

Decision of the Opposition Division:

Decision of the Board of Appeal: Dismissed the appeal

Decision of the Board of Appeal:

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 as the Board of Appeal erred in its finding that there is no likelihood of confusion between the conflicting trade marks; Infringement of Article 52(1)(a) of Council Regulation No 40/94 as the Board of Appeal erred in its finding that the evidence submitted by the applicant was not sufficient to prove the well known character of the earlier trade marks in Portugal, or, at least its enhanced distinctiveness as a whole.

Pleas in law:

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