Case T-128/06: Action brought on  28 April 2006  — Japan Tobacco v OHIM — Torrefacção Camelo (figurative mark CAMELO)
Date: 2006-07-01
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), coffee, tobacco industry, trade-mark law

1.7.2006

EN

Official Journal of the European Union

C 154/21

Action brought on 28 April 2006 — Japan Tobacco v
OHIM — Torrefacção Camelo (figurative mark CAMELO)

Action brought on 12 May 2006 — International Music
and TTV 2000 v OHIM — Past Perfect (PAST PERFECT)

(Case T-128/06)

(2006/C 154/51)

Language in which the application was lodged: French

(Case T-133/06)

(2006/C 154/52)

Language in which the application was lodged: German

Parties

Applicant: Japan Tobacco Inc. (Tokyo, Japan) (represented by:
A. Ortiz López, S. Ferrandis González and E. Ochoa Santa-
maría, lawyers)

Parties

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

Other party to the proceedings before the Board of Appeal of OHIM:
Torrefacção Camelo L da

Form of order sought

— annul the decision of the Second Board of Appeal of 22
February 2006 in Case R 669/2003-2 and give a judgment
in which, varying that decision,
[the Court of First
Instance] declares that it is necessary to apply the prohibi-
tion in Article 8(5) of the Community Trade Mark Regu-
lation in this case and consequently, recognising the merits
of the arguments presented by Japan Tobacco, decide to
refuse registration of Community trade mark no. 1469121;

it

— order OHIM to pay the costs of these proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Torrefacção Camelo L da

Community trade mark concerned: Mark containing figurative
elements (camel, pyramids, palm trees) and the name CAFÉ
TORREFACTO CAMPO MAIOR CAMELO CAFÉ ESPECIAL
PURO Torrefacção Camelo L da CAMPO MAIOR-PORTUGAL,
for goods in Class 30 (application no. 1469121)

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

Applicants: The International Music Company AG (Hamburg,
Germany) and TTV 2000 GmbH Tonträger Vertrieb (Hamburg,
Germany) (represented by: G. Kukuk, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM:
Past Perfect Limited

Forms of order sought

The applicant claims that the Court should:

— annul the decision of the First Board of Appeal of OHIM of
3 February 2006, Reference No R 150/2005-1, and remove
the registered Community trade mark ‘Past Perfect’, Mark
No 1 984 269, from the register;

— order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark the annulment of which has been
sought: The word mark ‘PAST PERFECT’ for goods in Class 9
(Community trade mark No 1 984 269).

Proprietor of the Community trade mark: Past Perfect Limited

Mark or sign cited in opposition: National word and figurative
marks ‘CAMEL’ for goods in Classes 22 and 34

Applicants for the declaration of annulment: The applicants

Decision of the Opposition Division: Opposition upheld

Decision of the Cancellation Division: Rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal

Decision of the Board of Appeal: Annulment of the decision of
the Opposition Division

Pleas in law:

Pleas in law: Incorrect application of Article 8(5) of Council
Regulation No 40/94 and also errors in the conduct of the
proceedings and infringement of Articles 74 and 79 of that
regulation.

— The registered trade mark is devoid of any actual distinctive
character within the meaning of Article 7(1)(b) of Regu-
lation (EC) No 40/94, (1)

— the contested decision infringes Article 7(2) of Regulation
(EC) No 40/94 since it is sufficient when the ground for
refusal obtains in part of the Community,