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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