# C_2004300EN.01004102.xml

| 4.12.2004 | EN | Official Journal of the European Union | C 300/41 |
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4.12.2004

EN

Official Journal of the European Union

C 300/41

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Action brought on 9 July 2004 by Vitakraft-Werke Wührmann & Sohn GmbH & Co. KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-277/04)

(2004/C 300/82)

Language of the case to be determined in accordance with Article 131(2) of the Rules of Procedure — Language in which the application is drafted: German.

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 9 July 2004 by Vitakraft-Werke Wührmann & Sohn GmbH & Co. KG, whose registered office is in Bremen (Germany), represented by U. Sander, lawyer.

The other party before the Board of Appeal was Johnson's Veterinary Products Limited, Sutton Coldfield (United Kingdom).

The applicant claims that the Court should:

| — | annul the decision of the First Board of Appeal of 27 April 2004 in Case R 560/2003-1; |
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annul the decision of the First Board of Appeal of 27 April 2004 in Case R 560/2003-1;

| — | order the defendant to pay the costs. |
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order the defendant to pay the costs.

Pleas in law and main arguments:

| Applicant for the Community trade mark: | Johnson's Veterinary Products Limited |
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| Community trade mark applied for: | The word mark ‘VITACOAT’ for goods in Classes 3, 5 and 21 (shampoos, conditioners, preparations for the hair and skin, deodorants, preparations for killing mites, lice, fleas and other parasites, all for animals, as well as brushes and combs for animals) |
| Proprietor of the mark or sign asserted by way of opposition: | The applicant |
| Mark or sign asserted by way of opposition: | The German word mark ‘VITAKRAFT’ |
| Decision of the Opposition Division: | Rejection of the notice of opposition |
| Decision of the Appeal Board: | Dismissal of the applicant's appeal |
| Pleas in law: | — | infringement of Article 8(1)(b) of Regulation (EC) No 40/94; |

Applicant for the Community trade mark:

Johnson's Veterinary Products Limited

Community trade mark applied for:

The word mark ‘VITACOAT’ for goods in Classes 3, 5 and 21 (shampoos, conditioners, preparations for the hair and skin, deodorants, preparations for killing mites, lice, fleas and other parasites, all for animals, as well as brushes and combs for animals)

Proprietor of the mark or sign asserted by way of opposition:

The applicant

Mark or sign asserted by way of opposition:

The German word mark ‘VITAKRAFT’

Decision of the Opposition Division:

Rejection of the notice of opposition

Decision of the Appeal Board:

Dismissal of the applicant's appeal

Pleas in law:

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infringement of Article 8(1)(b) of Regulation (EC) No 40/94;

| — | incorrect assessment of the original distinctive character of the mark asserted by way of opposition and of its enhanced distinctive character arising from the use which has been made of it; |
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incorrect assessment of the original distinctive character of the mark asserted by way of opposition and of its enhanced distinctive character arising from the use which has been made of it;

| — | incorrect assessment of the impact of the fact that the marks at issue are identical as regards the first part – ‘VITA’; |
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incorrect assessment of the impact of the fact that the marks at issue are identical as regards the first part – ‘VITA’;

| — | incorrect assessment of the aural and conceptual similarity of the marks at issue; |
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incorrect assessment of the aural and conceptual similarity of the marks at issue;

| — | failure to take into consideration the fact that the goods concerned are largely identical. |
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failure to take into consideration the fact that the goods concerned are largely identical.

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