Action brought on 14 November 2011 — S & S Szlegiel Szlegiel i Wiśniewski v OHIM — Scotch & Soda (SODA)

(Case T-590/11)

(2012/C 25/117)

Language in which the application was lodged: English

Parties

Applicant: S & S Piotr Szlegiel Jacek Szlegiel i Robert Wiśniewski sp. j. (Gorzów Wielkopolski, Republic of Poland) (represented by: R. Sikorski, adwokat)

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

Other party to the proceedings before the Board of Appeal: Scotch & Soda BV (Hoofddorp, Netherlands)

Form of order sought

—	Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 25 August 2011 in case R 1570/2010-2;

—	Reject in its entirety the opposition No B1438250;

—	Order the defendant to register the trade mark applied for; and

—	Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘SODA’, for goods in class 25 — Community trade mark application No 6970875

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: Community trade mark registration No 3593498 of the word mark ‘SCOTCH & SODA’, for goods in class 25

Decision of the Opposition Division: Rejected the Community trade mark application in its entirety

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 appreciate that there were sufficient visual, aural and conceptual differences between the marks, particularly with respect to its analysis of the conceptual meanings of the marks; (ii) to properly circumscribe and analyse the dominant element of the contested signs; and (iii) to properly take into consideration the level of attention of the average consumer of the category of goods concerned.