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Document 62008TN0435

    Case T-435/08: Action brought on 3 October 2008 — Tokita Management Service v OHIM — Eminent Food (TOMATOBERRY)

    OJ C 313, 6.12.2008, p. 48–48 (BG, ES, CS, DA, DE, ET, EL, EN, FR, IT, LV, LT, HU, MT, NL, PL, PT, RO, SK, SL, FI, SV)

    Date of document:
    03/10/2008
    Date lodged:
    03/10/2008
    Author:
    Court of First Instance
    Form:
    Judicial information
    Authentic language:
    English
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    Instruments cited in case law:
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    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.

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