Appeal brought on 14 June 2011 by XXXLutz Marken GmbH against the judgment of the General Court (Sixth Chamber) delivered on 24 March 2011 in Case T-54/09 XXXLutz Marken GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Natura Selection S.L.
(Case C-306/11 P)
2011/C 238/17
Language of the case: German

Parties
Appellant: XXXLutz Marken GmbH (represented by: H. Pannen, Rechtsanwalt)
Other parties to the proceedings:
—
Office for Harmonisation in the Internal Market (Trade Marks and Designs)
—
Natura Selection S.L.

Form of order sought
—
Set aside the judgment under appeal;
—
Refer the case back to the General Court;
—
Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs.

Pleas in law and main arguments
The General Court infringed Article 8(1)(b) of the Community Trade Mark Regulation (1) by concluding that the signs ‘Linea Natura Natur hat immer Stil’ and ‘natura selection’ were similar purely on the basis that both signs contained the word element ‘natura’. That word element is not, however, the dominant element of the earlier trade mark.
In its assessment of the similarity of the signs, the General Court started from a legally incorrect understanding of the concepts of ‘distinctive character’ and ‘descriptive character’.
Furthermore, the conclusions of the General Court concerning the similarity of the signs are contradictory and demonstrate in that regard a failure to state reasons.
In the judgment under appeal the General Court also proceeded on the basis of a distortion of the facts. Contrary to the findings of the General Court, the appellant has already demonstrated, in the proceedings before the Opposition Division and the Board of Appeal, that there is a connection between the goods at issue and the word element ‘natura’.
(1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ L 2009 78, p. 1).

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