CELEX: 62011TN0528
Language: en
Date: 2011-10-06 00:00:00
Title: Case T-528/11: Action brought on 6 October 2011 — Aloe Vera of America v OHIM — Diviril (FOREVER)

10.12.2011   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 362/18
            
         Action brought on 6 October 2011 — Aloe Vera of America v OHIM — Diviril (FOREVER)
   (Case T-528/11)
   2011/C 362/27
   Language in which the application was lodged: English
   
      Parties
   
   
      Applicant: Aloe Vera of America, Inc. (Dallas, United States) (represented by: R. Niebel and F. Kerl, lawyers)
   
      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   
      Other party to the proceedings before the Board of Appeal: Diviril-Distribuidora de Viveres do Ribatejo, Lda (Alenquer, Portugal)
   
      Form of order sought
   
   
               —
            
            
               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 8 August 2011 in case R 742/2010-4; and
            
         
               —
            
            
               Order the defendant and, as appropriate, the other party to the proceedings before the Board of Appeal 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 ‘FOREVER’, for goods in classes 3, 5, 30, 31 and 32 — Community trade mark application No 5617089
   
      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: Portuguese trade mark registration No 297697 of the figurative mark ‘4 EVER’, for goods in class 32
   
      Decision of the Opposition Division: Upheld the opposition
   
      Decision of the Board of Appeal: Dismissed the appeal
   
      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal failed: (i) to correctly assess the proof of use provided by the other party to the proceedings before the Board of Appeal; (ii) to correctly identify the aural differences between the opposed trade marks; (iii) to correctly identify the conceptual differences between the trade marks in conflict; and (iv) to correctly identify the visual differences between the opposed trade marks.