# C_2008092EN.01003901.xml

| 12.4.2008 | EN | Official Journal of the European Union | C 92/39 |
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12.4.2008

EN

Official Journal of the European Union

C 92/39

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Action brought on 7 February 2008 — Nute Partecipazione and La Perla v OHIM — Worldgem Brands (NIMEI LA PERLA MODERN CLASSIC)

(Case T-59/08)

(2008/C 92/78)

Language in which the application was lodged: Italian

Parties

Applicants: Nute Partecipazione Spa (Bologna, Italy) and La Perla Srl (Bologna, Italy) (represented by: R. Morresi and A. del Ferro, lawyers)

Applicants:

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Defendant:

Other party to the proceedings before the Board of Appeal of OHIM: Worldgem Brands Srl (Olmo di Creazzo, Italy)

Other party to the proceedings before the Board of Appeal of OHIM:

Form of order sought

| — | Annul and alter the decision of the Second Board of Appeal of OHIM of 19 November 2007 on the ground of misapplication of Article 8(5) and infringement of Articles 63(6), 73 and 74 of the regulation on the Community trade mark; |
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Annul and alter the decision of the Second Board of Appeal of OHIM of 19 November 2007 on the ground of misapplication of Article 8(5) and infringement of Articles 63(6), 73 and 74 of the regulation on the Community trade mark;

| — | in the alternative, annul the decision of the Second Board of Appeal of OHIM of 19 November 2007 on the ground of misapplication of Article 8(5) and infringement of Articles 63(6), 73 and 74 of the regulation on the Community trade mark; |
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in the alternative, annul the decision of the Second Board of Appeal of OHIM of 19 November 2007 on the ground of misapplication of Article 8(5) and infringement of Articles 63(6), 73 and 74 of the regulation on the Community trade mark;

| — | in the further alternative, annul and/or alter the decision of the Second Board of Appeal of OHIM of 19 November 2007 on the ground of misapplication of Article 8(1)(b) of the regulation on the Community trade mark and infringement of Articles 63(6), 73 and 74 of the regulation on the Community trade mark; |
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in the further alternative, annul and/or alter the decision of the Second Board of Appeal of OHIM of 19 November 2007 on the ground of misapplication of Article 8(1)(b) of the regulation on the Community trade mark and infringement of Articles 63(6), 73 and 74 of the regulation on the Community trade mark;

| — | in any event, order OHIM and Worldgem Brands Srl, jointly and severally, to pay the costs of all the proceedings, including the costs relating to the proceedings before the Second Board of Appeal of OHIM. |
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in any event, order OHIM and Worldgem Brands Srl, jointly and severally, to pay the costs of all the proceedings, including the costs relating to the proceedings before the Second Board of Appeal of OHIM.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Community word mark ‘NIMEI LA PERLA MODERN CLASSIC’ (application for registration No 713.446) for goods in Class 14. That trade mark has already been the subject of an earlier application for a declaration of invalidity. The decision rejecting that earlier application by the First Board of Appeal was annulled by judgment of the Court of First Instance in Case T-137/05 La Perla v OHIM — Worldgem Brands
   (1).

Registered Community trade mark in respect of which a declaration of invalidity has been sought:

La Perla

OHIM

Worldgem Brands

1

Proprietor of the Community trade mark: WORLDGEM BRANDS Srl

Proprietor of the Community trade mark:

Applicant for the declaration of invalidity: the applicant.

Applicant for the declaration of invalidity:

Trade mark right of applicant for the declaration: the reputation of a number of ‘PERLA’ Italian figurative marks for goods in Classes 3, 9, 14, 16, 18, 24, 25 and 35.

Trade mark right of applicant for the declaration:

Decision of the Cancellation Division: granted the application and declared that the registration of the Community trade mark in question was invalid.

Decision of the Cancellation Division:

Decision of the Board of Appeal: annulled the contested decision and granted in part the application for a declaration of invalidity.

Decision of the Board of Appeal:

Pleas in law: infringement of provisions of law and misinterpretation and misapplication of Articles 63, 73 and 74 of Regulation (EC) No 40/94 on the Community trade mark. In the alternative: infringement of provisions of law and misapplication of Article 8(1)(b) of that regulation.

Pleas in law:

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(1)  Not yet published in the ECR.

1

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