# C_2004106EN.01006602.xml

| 30.4.2004 | EN | Official Journal of the European Union | C 106/66 |
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30.4.2004

EN

Official Journal of the European Union

C 106/66

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Action brought on 9 January 2004 by ‘Almdudler-Limonade’ A. & S. Klein against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-12/04)

(2004/C 106/136)

Language of the case: German

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 9 January 2004 by ‘Almdudler-Limonade’ A. & S. Klein, of Vienna, represented by G. Schönherr, lawyer.

The applicant claims that the Court should:

| — | give a decision in the case and amend Decision R 490/2003-2 of the Second Board of Appeal of the Office for Harmonisation in the Internal Market of 5 November 2003 so that its Community trade mark application No 2 193 753 is allowed; |
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give a decision in the case and amend Decision R 490/2003-2 of the Second Board of Appeal of the Office for Harmonisation in the Internal Market of 5 November 2003 so that its Community trade mark application No 2 193 753 is allowed;

| — | alternatively, set aside Decision R 490/2003-2 of the Second Board of Appeal of the Office for Harmonisation in the Internal Market of 5 November 2003 and remit the case to the Office for a fresh hearing and decision; |
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alternatively, set aside Decision R 490/2003-2 of the Second Board of Appeal of the Office for Harmonisation in the Internal Market of 5 November 2003 and remit the case to the Office for a fresh hearing and decision;

| — | order the Office for Harmonisation in the Internal Market to pay the applicant's representative within 14 days the costs of these proceedings and those before the Board of Appeal. |
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order the Office for Harmonisation in the Internal Market to pay the applicant's representative within 14 days the costs of these proceedings and those before the Board of Appeal.

Pleas in law and main arguments:

| Community trade mark sought: | Three-dimensional mark in the shape of a lemonade bottle – Application No 2 193 753 |
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| Goods or services: | Goods in Class 32 (herbal lemonade) |
| Decision challenged before the Board of Appeal: | Registration rejected by the examiner |
| Decision of the Board of Appeal: | Appeal dismissed |
| Pleas in law: | — | The mark applied for displays more than the required minimum distinctiveness. |

Community trade mark sought:

Three-dimensional mark in the shape of a lemonade bottle – Application No 2 193 753

Goods or services:

Goods in Class 32 (herbal lemonade)

Decision challenged before the Board of Appeal:

Registration rejected by the examiner

Decision of the Board of Appeal:

Appeal dismissed

Pleas in law:

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The mark applied for displays more than the required minimum distinctiveness.

| — | The relevant consumers are capable of distinguishing goods using this shape of packaging from goods of other commercial origin. |
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The relevant consumers are capable of distinguishing goods using this shape of packaging from goods of other commercial origin.

| — | The distinctiveness is even greater if the contents of the bottle are taken into account. |
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The distinctiveness is even greater if the contents of the bottle are taken into account.

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