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Case T-435/08: Action brought on 3 October 2008 — Tokita Management Service v OHIM — Eminent Food (TOMATOBERRY)
ECLI:EU:UNKNOWN:62008TN0435
62008TN0435
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6.12.2008
Official Journal of the European Union
C 313/48
(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.