Case T-129/04: Action brought on 1 April 2004 by Develey Holding GmbH & Co. Beteiligungs KG against the Office for Harmonisation in the Internal Market
Date: 2004-06-26
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), fruit juice, milk, milk product, trade-mark law, vegetable product

C 168/6

EN

Official Journal of the European Union

26.6.2004

Action brought on 31 March 2004 by Cargo Partner AG
the Office for Harmonisation in the Internal
against
Market (Trade Marks and Designs) (OHIM)

Action brought on 1 April 2004 by Develey Holding
the Office for
GmbH & Co. Beteiligungs KG against

Harmonisation in the Internal Market

(Case T-123/04)

(2004/C 168/10)

(Language of the case: German)

(Case T-129/04)

(2004/C 168/11)

(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 31
March 2004 by Cargo Partner AG, Fischamend (Austria), repre-
sented by M. Wolner, lawyer.

The applicant claims that the Court should:

— vary the contested decision so as to allow registration of

the trade mark sought;

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 1 April 2004 by Develey Holding
GmbH & Co. Beteiligungs KG, Unterhaching (Germany), repre-
sented by H.P. Kunz-Hallstein and R. Kunz-Hallstein, lawyers.

The applicant claims that the Court should:

— annul the decision of the Second Board of Appeal of the
(Trade

Office for Harmonisation in the Internal Market
Marks and Designs) of 20 January 2004;

— order the defendant Office to pay the costs.

— in the alternative, refer the case back to the Office for
Harmonisation in the Internal Market (Trade Marks and
Designs); and,

Pleas in law and main arguments:

— in any event, award costs to the applicant.

Community trade mark
sought:

A three dimensional mark in the
shape of a plastic bottle – Applica-
tion No 2579381.

Pleas in law and main arguments:

Goods or services:

Community trade mark
sought:

word

The
PARTNER
No 2697290.

mark

—

CARGO
Application

Goods or services:

Goods and services in Classes 36
(insurance)
and 39 (transport;
packaging and storage of goods;
travel arrangement).

Decision
before
Appeal:

contested
the Board of

The examiner's partial refusal
to
register the mark in respect of the
transport, packaging and storage
services in Class 39.

the Board

Dismissal of the appeal.

Decision of
of Appeal:

Pleas in law:

Goods in Classes 29, 30 and 32
(inter alia, tomato pulp, milk and
mayonnaises,
milk
ketchup, fruit drinks).

products,

Decision
before
Appeal:

contested
the Board of

Refusal by the examiner to register
the mark.

Decision of
of Appeal:

Pleas in law:

the Board

Dismissal of the appeal.

Infringement of Articles 74(1) and
45 of Regulation (EC) No 40/
94 (1), infringement of Article 73
of Regulation (EC) No 40/94,
the defendant Office
insofar as
is not bound by
it
stated that
earlier
in Member
registrations
States, and infringement of Article
7(1) of Regulation (EC) No 40/94.

The mark is distinctive and there-
fore registrable.

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

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