Source: EURLEX
Language: en
Format: md

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| 26.11.2005 | EN | Official Journal of the European Union | C 296/26 |

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Action brought on 2 September 2005 — Aqua-Terra Bioprodukt v OHIM

(Case T-330/05)

(2005/C 296/56)

Language in which the application was lodged: German

Parties

Applicant(s): Aqua-Terra Bioprodukt GmbH (Griesheim, Germany) (represented by: P.A. Müller, lawyer)

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

Other party or parties to the proceedings before the Board of Appeal of OHIM: De Ceuster Meststoffen NV (Sint-Katelijne-Waver, Belgium)

Forms of order sought

The applicant claims that the Court should:

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| — | annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market in appeal proceedings No R0984/2004-1, dated 1 July 2005; |

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| — | in the alternative, set aside and annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market in appeal proceedings No R0984/2004-1, dated 1 July 2005, in so far as ‘biological substances, namely preparations for conditioning, reconstructing and recultivating sewage or for use in sewage treatment plants’ are concerned. |

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘aqua terra’ for goods in Classes 1 and 3 — Registration No 1 480 243

Proprietor of the mark or sign cited in the opposition proceedings: De Ceuster Meststoffen NV

Mark or sign cited in opposition: The national word mark ‘AQUATERRA’ for goods in Classes 1, 5 and 31

Decision of the Opposition Division: Upholds the opposition which was restricted in relation to the goods in Class 1 and refusal to register all the goods in Class 1

Decision of the Board of Appeal: Dismissal of the applicant's appeal

Pleas in law: The contested decision infringes Article 8(1)(b) of Council Regulation (EC) No 40/94 due to an erroneous assessment of the likelihood of confusion of the two marks in opposition. Consideration was not taken of the individual goods and their similarity as required and a general evaluation was carried out instead.

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