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Case C-541/10 P: Appeal brought on 22 November 2010 by Quinta do Portal SA against the judgment of the General Court (Eighth Chamber) delivered on 8 September 2010 in Case T-369/09 Quinta do Portal v OHIM
ECLI:EU:UNKNOWN:62010CN0541
62010CN0541
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Official Journal of the European Union
C 38/4
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(Case C-541/10 P)
2011/C 38/05
Language of the case: Portuguese
Parties
Appellant: Quinta do Portal (represented by Bolota Belchior, advogado)
Other parties to the proceedings: the Office for Harmonisation in the Internal Market (Trade Marks and Designs), Vallegre — Vinhos do Porto, SA
Form of order sought
—Setting aside of the judgment of the General Court in its entirety;
—a declaration allowing in full the appellant’s claims at first instance, namely, annulment of the decision of 18 June 2009 of the First Board of Appeal of the Office for Harmonisation in the Internal Market (‘the Office’), which dismissed the appeal brought against the decision of the Community trade marks Cancellation Division which, in its turn, declared invalid the Community trade mark No 004009908 PORTO ALEGRE registered on 16 May 2006, published in Community Trade Marks Bulletin No 30/2005 of 25 July 2005 (Case R 1012/2008-1);
—an order that the respondent should pay the costs at both instances.
Pleas in law and main arguments
The words ‘Porto Alegre’ and ‘Vista Alegre’ are dissimilar conceptually, as regards the dominant element of the mark as a whole, and dissimilar graphically and phonetically, for the two words of the two trade marks are different.
The decisive factor in the distinctiveness of the Community trade mark applied for is the combination of the words ‘Porto’ and ‘Alegre’, which form, together, a single logical and conceptual unit.
The word ‘Alegre’ does not form the dominant element of the Community trade mark. Having regard to the effect of that issue in evaluating the similarity of signs, it must be noted that that is not so in the present case.
The judgment under appeal misinterpreted Article 8(1)(b) of both Regulation No 40/94 (1) and Regulation (EC) No 207/2009 (2) (the wording is the same in the two regulations), so infringing them.
The judgment under appeal failed to take into account those arguments raised in the action before the General Court, for it did not assess them.
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(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).
(2) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (codified version) (OJ 2009 L 78, p. 1).
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