CELEX: 62008TN0435
Language: en
Date: 2008-10-03 00:00:00
Title: Case T-435/08: Action brought on 3 October 2008 — Tokita Management Service v OHIM — Eminent Food (TOMATOBERRY)

6.12.2008   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 313/48
            
         Action brought on 3 October 2008 — Tokita Management Service v OHIM — Eminent Food (TOMATOBERRY)
   (Case T-435/08)
   (2008/C 313/86)
   Language in which the application was lodged: English
   Parties
   
      Applicant: Tokita Management Service Corp. (Saitama, Japan) (represented by: P. Brownlow and N. Jenkins, Solicitors and A. Bryson, Barrister)
   
      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   
      Other party to the proceedings before the Board of Appeal: Eminent Food BV (Bussum, Netherlands)
   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 18 July 2008 in case R 1219/2007-4; and
            
         
               —
            
            
               Order OHIM to pay the costs.
            
         Pleas in law and main arguments
   
      Applicant for the Community trade mark: The applicant
   
      Community trade mark concerned: The word mark ‘TOMATOBERRY’ for goods in class 31 — application No 3 797 909
   
      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: Community trade mark registration No 3 344 711 of the figurative mark ‘Tomberry’ for goods and services in classes 31, 35 and 44
   
      Decision of the Opposition Division: Upheld the opposition in its entirety
   
      Decision of the Board of Appeal: Dismissal of the appeal
   
      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 as the Board of Appeal erred in its finding that the trade marks concerned are highly similar visually and conceptually; infringement of Article 8(1)(a) and/or Article 73 and/or Article 74(1) of Council Regulation No 40/94 as the Board of Appeal erred in its conclusion that the Opposition Division's finding that the opposition must be upheld on the ground of Article 8(1)(a) of Council Regulation No 40/94 was correct.