Source: EURLEX
Language: en
Format: md

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| 17.6.2006 | EN | Official Journal of the European Union | C 143/32 |

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Action brought on 12 April 2006 — Wesergold Getränkeindustrie v OHIM — Lidl Stiftung (VITAL& FIT)

(Case T-111/06)

(2006/C 143/64)

Language in which the application was lodged: German

Parties

Applicant: Wesergold Getränkeindustrie GmbH & Co. KG (Rinteln, Germany) (represented by: P. Godenbaum, T. Melchert and I. Rohr, Rechtsanwälte)

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

Other party to the proceedings before the Board of Appeal of OHIM: Lidl Stiftung & Co. KG (Neckarsulm, Germany)

Form of order sought

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| — | Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market of 16 February 2006 (R 3/2005-2); |

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

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: The figurative mark ‘VITAL& FIT’ for goods in Class 32 (Application no. 1 457 951).

Proprietor of the mark or sign cited in the opposition proceedings: Lidl Stiftung & Co. KG.

Mark or sign cited in opposition: The German word mark ‘VITAFIT’ no. 1 050 163 for goods in Class 32.

Decision of the Opposition Division: Grant of the opposition

Decision of the Board of Appeal: Rejection of the appeal

Pleas in law: Misinterpretation of the subject of the appeal by the Board of Appeal (Article 62(1) of Regulation (EC) No 40/94[(1)](#ntr1-C_2006143EN.01003201-E0001)); breach of the right to a fair hearing and the obligation to state reasons (Article 73 of Regulation No 40/94); breach of the obligation to take into account the facts and evidence which were not submitted late (Article 73 of Regulation No 40/94); breach of Article 8(1)(b) of Regulation No 40/94, as there is no likelihood of confusion between the opposing trade marks.

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