EN Official Journal of the European Union C 152/27

Action brought on 23 March 2011 — Chivas v OHIM — Glencairn Scotch Whisky (CHIVAS LIVE WITH CHIVALRY)

(Case T-180/11)

2011/C 152/49

Language in which the application was lodged: English

Parties

Applicant: Chivas Holdings (IP) Ltd (Renfrewshire, United Kingdom) (represented by: A. Carboni, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Glencairn Scotch Whisky Co. Ltd (Glasgow, United Kingdom)

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 12 January 2011 in case R 1262/2010-1, and remit the application to OHIM to allow it to proceed; and

— Order the defendant and any intervening parties in this appeal to bear their own costs and those of the applicant, incurred for these proceedings and those of the appeal procedure before the Board of Appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘CHIVAS LIVE WITH CHIVALRY’, for goods and services in classes 33, 35 and 41 — Community trade mark application No 7299605

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

Mark or sign cited in opposition: United Kingdom trade mark registration No 1293610 of the figurative mark ‘CHIVALRY’, for goods in class 33; United Kingdom trade mark registration No 2468527 of the figurative mark ‘CHIVALRY SPECIAL RESERVE SCOTCH WHISKY’, for goods in class 33; Non-registered United Kingdom trade mark of the word ‘CHIVALRY’ in respect of ‘Scotch whisky’

Decision of the Opposition Division: Partly upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 76(1) and 75 of Council Regulation No 207/2009, as the Board of Appeal: (i) wrongly made a finding of fact as to the characteristics of the relevant public and failed to state the reasons for making the said finding; (ii) in the alternative to ground (i), having found that the relevant consumer is ‘particularly brand-conscious and brand-loyal’, incorrectly failed to appreciate that such characteristics would increase the attentiveness of the relevant consumer and accordingly reduce the likelihood of confusion occurring; (iii) failed to take into account, or took insufficient account of, the different nature and purposes of the marks under consideration; (iv) failed to take into account of important guidance laid down by the Court of Justice and took the wrong approach when comparing the marks; (v) focused undue attention on the presence of the word ‘CHIVALRY’ in the applicant’s mark and ignored the visual differences between the marks; (vi) wrongly assumed that the aural comparison of the marks could be approached in the same way as the visual comparison; (vii) was wrong to limit, or focus, its analysis of the conceptual similarity between the marks to the single word ‘CHIVALRY’ that appeared in each mark; and (viii) incorrectly assessed likelihood of confusion.