Action brought on 22 December 2010 — Wohlfahrt v OHIM — Ferrero (Kindertraum)

(Case T-580/10)

2011/C 63/55

Language in which the application was lodged: German

Parties

Applicant: Harald Wohlfahrt (Rothenburg o.d. Tauber, Germany) (represented by: N. Scholtz-Recht, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Ferrero SpA (Alba, Italy)

Form of order sought

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Word mark ‘Kindertraum’ for goods in Classes 15, 16, 20, 21 and 28.

Proprietor of the mark or sign cited in the opposition proceedings: Ferrero SpA.

Mark or sign cited in opposition: A total of 32 older marks which, in part figuratively, in part as a component of a multi-word mark and in part as a single word, contain the word ‘kinder’, in particular the Italian word mark ‘kinder’ for goods and services in Classes 9, 16, 28, 30 and 42.

Decision of the Opposition Division: Upheld the opposition and refused registration.

Decision of the Board of Appeal: Dismissed the appeal.

Pleas in law: Infringement of Article 42(2) of Regulation (EC) No 207/2009 (1) on the ground of missing evidence of use after expiry of the period of protected use during the opposition proceedings. Formal lack of grounds for the contested decision, since the Board of Appeal, in its decision, failed to examine the abusive trade mark application alleged in the grounds for the appeal and extensively supported by evidence. Further, an abusive trade mark application, since the sole aim of the proprietors of the opposing mark is to monopolise the term ‘kinder’ in the widest possible manner. Finally, infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, since there is no likelihood of confusion between the marks at issue.

(1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).