Case T-12/04: Actionbrought on 9 January 2004 by ‘Almdudler-Limonade’ A. & S. Klein against the Office for Harmonisationin the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2004-04-30
Institutions: Court of First Instance
Subjects: European Union Intellectual Property Office, action for annulment (EU), aerated drink, brand name, packaging product, trade-mark law

C 106/66

EN

Official Journal of the European Union

30.4.2004

Action brought on 22 December 2003 by Dr. Grandel
GmbH against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM)

Pleas in law:

— Incorrect

application

of
Article 8(1)(b) of Regulation
(EC) No 40/94;

(Case T-426/03)

(2004/C 106/135)

(Language of the case to be determined pursuant to Article 131(2) of
the Rules of Procedure — language in which the application was
submitted: 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 22
December 2003 by Dr. Grandel GmbH, Augsburg (Germany),
represented by W. Göpfert, lawyer.

RE.LE.VI. S.p.A., Rodigo (Italy), was also a party to the proceed-
ings before the Board of Appeal.

The applicant claims that the Court should:

— Incorrect determination of the
the

of

protective
scope
conflicting marks,

— Failure to have regard to Deci-
sion R 915/2001-4, by which
the Community application for
the word mark ‘GRANFORTE’
was rejected for goods similar
to the goods in question here;

— No risk of confusion.

(1) Decision R 920/2001 of

the Fourth Board of Appeal of 10

September 2003.

— annul Decision R 2920/2001-4 of the Fourth Board of

Appeal of 17 October 2003;

— order OHIM to pay the costs of the proceedings.

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

Pleas in law and main arguments:

Applicant
munity trade mark:

for

Com-

The applicant

Community trade mark
sought:

The word mark ‘GRAN’ goods in
(inter alia,
Classes 3, 5 and 30,
cosmetics;
and
sanitary preparations; pastries)

pharmaceutical

Proprietor of mark or
sign cited in the opposi-
tion proceedings:

Mark or sign cited in
opposition.

RE.LE.VI. S.p.A

The Italian, Greek and interna-
tional word mark ‘GRANFORTE’
for goods in Classes 1, 3, 5 and
11

Decision of the Opposi-
tion Division:

rejection of the opposition

Decision of
of Appeal (1):

the Board

annulment of the decision of the
Opposition Division and rejection
of the application

(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
the European Communities on
9 January 2004 by ‘Almdudler-Limonade’ A. & S. Klein, of
Vienna, represented by G. Schönherr, lawyer.

Instance of

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;

— 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;

30.4.2004

EN

Official Journal of the European Union

C 106/67

— 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.

The applicant claims that the Court should:

— annul the decision of the First Board of Appeal of OHIM of

20 November 2003 (Case R 10/2003-1);

Pleas in law and main arguments:

— order OHIM to pay the costs.

Community trade mark
sought:

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

Pleas in law and main arguments:

Goods or services:

in
Goods
lemonade)

Class

32

(herbal

Decision
before
Appeal:

challenged
the Board of

Registration rejected by the exam-
iner

Decision of
of Appeal:

Pleas in law:

the Board

Appeal dismissed

— The mark applied for displays
required

more
minimum distinctiveness.

than

the

of

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

— The distinctiveness

even
greater if the contents of the
bottle are taken into account.

is

Applicant
munity trade mark:

for

Com-

Mr Mirco Cara

Community trade mark
sought:

Figurative
‘TOSKA
mark
LEATHER’ for goods in Classes 16,
18 and 25 (including books, bags
and clothing for men, women and
children in general) – Application
No. 1 079 888

Proprietor of mark or
sign cited in the opposi-
tion proceedings:

The applicant

Mark or sign cited in
opposition.

The German word mark ‘TOSCA’
for perfumery (including ‘Parfum’,
‘Eau de Toilette’
and ‘Eau de
Parfum Pour Femmes’

Decision of the Opposi-
tion Division:

Opposition upheld in respect of
goods
in Class 25. Opposition
refused as to the remainder.

Action brought on 22 January 2004 by Mühlens GmbH &
the Office for Harmonisation in the
Co. KG against

Internal Market (Trade Marks and Designs) (OHIM)

Decision of
of Appeal:

Pleas in law:

(Case T-28/04)

(2004/C 106/137)

(Language of the case to be determined pursuant to Article 131(2) of
the Rules of Procedure — language in which the application was
submitted: 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 22
January 2004 by Mühlens GmbH & Co. KG, Cologne
(Germany), represented by T. Schulte-Beckhausen, lawyer. Mr
Mirco Cara, Trezzano Sul Naviglio, Milan (Italy), was also a
party to the proceedings before the Board of Appeal.

the Board

Applicant's appeal rejected.

The opposition on the basis of the
mark cited (a well-known mark)
was well
founded under Article
8(1)(b) of Regulation (EC) No
40/94.
(1)likelihood of confusion
between the conflicting signs.simi-
larity of the conflicting goods.the
mark cited in opposition is a mark
which has a reputation within the
meaning of Article 8(5) of Regu-
lation (EC) No 40/94.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).