# C_2013260EN.01004902.xml

| 7.9.2013 | EN | Official Journal of the European Union | C 260/49 |
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7.9.2013

EN

Official Journal of the European Union

C 260/49

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Action brought on 23 July 2013 — Apple and Pear Australia and Star Fruits Diffusion v OHIM — Carolus C. (English pink)

(Case T-378/13)

2013/C 260/88

Language of the case: French

Parties

Parties

Applicants: Apple and Pear Australia Ltd (Victoria, Australia) and Star Fruits Diffusion (Caderousse, France) (represented by: T. de Haan and P. Péters, lawyers)

Applicants:

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

Defendant:

Other party to the proceedings before the Board of Appeal: Carolus C. BVBA (Nieuwerkerken, Belgium)

Other party to the proceedings before the Board of Appeal:

Form of order sought

Form of order sought

| — | First, alter the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 May 2013 in Case R 1215/2011-4 to the effect that the action brought by the applicants before the Board of Appeal is well founded and, consequently, that the opposition filed by the applicants should be upheld; |
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First, alter the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 May 2013 in Case R 1215/2011-4 to the effect that the action brought by the applicants before the Board of Appeal is well founded and, consequently, that the opposition filed by the applicants should be upheld;

| — | In the alternative, annul in its entirety the decision of the Fourth Board of Appeal of OHIM of 29 May 2013 in Case R 1215/2011-4; and |
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In the alternative, annul in its entirety the decision of the Fourth Board of Appeal of OHIM of 29 May 2013 in Case R 1215/2011-4; and

| — | Order OHIM to pay the costs. |
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Order OHIM to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

Applicant for a Community trade mark: Carolus C.

Applicant for a Community trade mark:

Community trade mark concerned: Word mark ‘English pink’ for goods in Class 31 — Application for Community trade mark No 8 610 768

Community trade mark concerned

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

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

Mark or sign cited in opposition: Word mark ‘PINK LADY’ and figurative marks containing the word elements ‘Pink lady’ for goods in Classes 16, 29, 30, 31 and 32

Mark or sign cited in opposition:

Decision of the Opposition Division: Rejection of the opposition

Decision of the Opposition Division

Decision of the Board of Appeal: Dismissal of the appeal

Decision of the Board of Appeal:

Pleas in law:

Pleas in law:

| — | Infringement of the principle of res judicata; |
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Infringement of the principle of res judicata;

res judicata

| — | Infringement of the general principles of legal certainty, sound administration and protection of legitimate expectations; |
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Infringement of the general principles of legal certainty, sound administration and protection of legitimate expectations;

| — | Infringement of Article 75 of Regulation No 207/2009; |
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Infringement of Article 75 of Regulation No 207/2009;

| — | Infringement of Article 76 of Regulation No 207/2009; |
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Infringement of Article 76 of Regulation No 207/2009;

| — | Infringement of Article 8(1)(b) of Regulation No 207/2009; |
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Infringement of Article 8(1)(b) of Regulation No 207/2009;

| — | Infringement of Article 8(5) of Regulation No 207/2009. |
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Infringement of Article 8(5) of Regulation No 207/2009.

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