Appeal brought on 12 February 2010 by Longevity Health Products, Inc against the judgment of the General Court (Eighth Chamber) delivered on 9 December 2009 in Case T-484/08 Longevity Health Products, Inc v OHIM — Merck (Kids Vids)

(Case C-84/10 P)

2010/C 100/44

Language of the case: German

Parties

Appellant: Longevity Health Products, Inc (represented by: J. Korab, lawyer)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Merck KGaA

Form of order sought

By its appeal, the appellant claims that the Court should:

Pleas in law and main arguments

The present appeal is brought against the judgment of the General Court, dismissing the appellant’s action for annulment of the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs)(OHIM) of 28 August 2008 on the dismissal of the application for registration as a Community trade mark of the sign ‘Kids Vits’. The Court delivered a ruling confirming the decision of the Board of Appeal, according to which there was a likelihood of confusion with the earlier Community word mark ‘VITS4KIDS’.

The grounds of appeal relied upon are a breach of procedure and the infringement of Article 8(1)(b) of Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark.

The appellant asserts that the General Court committed a procedural error by not setting a time-limit for lodging a response to the defence submitted by the respondent despite the reasoned request by the appellant. In breach of Community law rules applicable to proceedings before the General Court and the Court of Justice, the applicant’s right to a fair hearing was infringed and its right to legal protection impaired.

The appellant submits that the General Court infringed Article 8(1)(b) of Regulation No 40/94 by wrongly failing to undertake in its assessment of the likelihood of confusion an overall appraisal of all factors. The Court wrongly held that the noticeable similarities of the opposing marks were sufficient to find that there was a likelihood of confusion for the purposes of trade mark law.

In particular the Court did not take sufficient account of the fact that the marks at issue predominantly concern goods and services broadly connected to human health, and therefore a high level of attention can be expected from the relevant class of persons. Consumers are perfectly aware, that in the case of trade mark names derived from and based on chemical nomenclature, even slight differences play a role. Furthermore the attentiveness of consumers is further increased by the fact that confusion of the goods may have very unpleasant consequences. That mere fact alone calls for a higher level of attention.

The Court did not take account of the fact that, the terms of the marks ‘Kids’‘Vits’ und ‘VITS4KIDS’ are substantially different, as the phonetic reproductions of the brand names show appreciable differences. The pronunciation of brand names contribute largely to the memory that a consumer has of a trade mark and on this ground alone there is no likelihood of confusion. Although there is visual similarity, the words ‘Kids’ and ‘Vits’ are nevertheless placed differently in the marks at issue and in the case of the intervener’s mark supplemented by a further sign, (namely a number ‘4’, which should be pronounced as ‘for’ in the sense of ‘intended for’). Furthermore both marks follow as a whole two separate schemes of construction of composite terms, which is of itself sufficient to ensure their distinctiveness.