(Case T-111/06)

Community trade mark – Opposition proceedings – Application for the Community figurative mark VITAL FIT – Earlier national word mark VITAFIT – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 40/94 – Right to a fair hearing – Obligation to state reasons

Community trade mark – Definition and acquisition of the Community trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Likelihood of confusion with the earlier mark (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 39, 42, 45-47)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 16 February 2006 in Case R 3/2005-2 relating to opposition proceedings between Lidl Stiftung & Co. KG and Wesergold Getränkeindustrie GmbH & Co. KG.

Information relating to the case

Applicant for the Community trade mark:

Community trade mark sought:

Figurative mark VITAL FIT for goods in Class 32 – Application No 1457951

Proprietor of the mark or sign cited in the opposition proceedings:

Lidl Stiftung & Co. KG

Mark or sign cited in opposition:

National word mark VITAFIT for goods in Class 32 – Application No 1050163

Decision of the Opposition Division:

Opposition upheld

Decision of the Board of Appeal:

Appeal dismissed

Operative part

The Court:

1.Dismisses the action;

2.Orders Wesergold Getränkeindustrie GmbH & Co. KG to pay the costs.