Case T-7/08: Action brought on 4 January 2008 — Nestlé v OHIM — Master Beverage Industries (Golden Eagle Deluxe)
Date: 2008-01-04
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), food industry, trade-mark law

C 64/56

EN

Official Journal of the European Union

8.3.2008

Form of order sought

Action brought on 4 January 2008 — Nestlé v OHIM —
Master Beverage Industries (Golden Eagle Deluxe)

— Annul

the decision of

the defendant's Second Board of
Appeal of 1 October 2007, Case R 568/2006-2
(CTM 3 156 924);

— decide that the contested CTM application No 3 156 924
RED MUG device with ‘Golden Eagle Deluxe’ must be
rejected;

— order the defendant to pay the costs of the proceedings,
including those incurred by the applicant before the Board
of Appeal;

— order Master Beverage, the other party to the proceedings
before the Board of Appeal, to pay the costs of the proceed-
ings, including those incurred by the applicant before the
Board of Appeal, in case it should become an intervening
party in this case.

(Case T-7/08)

(2008/C 64/90)

Language in which the application was lodged: English

Parties

Applicant: Société des Produits Nestlé SA (Vevey, Switzerland)
(represented by: A. von Mühlendahl, lawyer)

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

Other party to the proceedings before the Board of Appeal: Master
Beverage Industries Pte Ltd (Singapore, Singapore)

Pleas in law and main arguments

Form of order sought

Applicant for the Community trade mark: Master Beverage Indus-
tries Pte Ltd

Community trade mark concerned: The figurative mark ‘Golden
Eagle Deluxe’ for goods in class 30 — application No 3 156 924

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

Mark or sign cited: The Community, international and national
‘Gold Blend’ and
figurative marks and word marks ‘Red Cup’,
representations of a cup for, inter alia, coffee

— Annul

the decision of

the defendant's Second Board of
Appeal of 1 October 2007, Case R 1312/2006-2
(CTM 3 157 534);

— decide that the contested CTM application No 3 157 534
RED MUG device with ‘Golden Eagle Deluxe’ must be
rejected;

— order the defendant to pay the costs of the proceedings,
including those incurred by the applicant before the Board
of Appeal;

— order Master Beverage, the other party to the proceedings
before the Board of Appeal, to pay the costs of the proceed-
ings, including those incurred by the applicant before the
Board of Appeal, in case it should become an intervening
party in this case.

Pleas in law and main arguments

Decision of the Opposition Division: Rejection of the opposition in
its entirety

Applicant for the Community trade mark: Master Beverage Indus-
tries Pte Ltd

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Violation of Article 8(1)(b) and 8(5) of Council
Regulation No 40/94, as the conflicting trade marks have a
high degree of visual similarity because of an identical arrange-
ment of nine elements present in both the trade mark applied
for and in most of
the earlier marks, which are inherently
distinctive.

Community trade mark concerned: The figurative mark ‘Golden
Eagle Deluxe’ for goods in class 30 — application No 3 157 534

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

Mark or sign cited: The Community, international and national
figurative marks and word marks ‘Red Cup’,
‘Gold Blend’ and
representations of a cup for, inter alia, coffee

Decision of the Opposition Division: Rejection of the opposition in
its entirety

Decision of the Board of Appeal: Dismissal of the appeal

8.3.2008

EN

Official Journal of the European Union

C 64/57

Pleas in law: Violation of Article 8(1)(b) and 8(5) of Council
Regulation No 40/94, as the conflicting trade marks have a
high degree of visual similarity because of an identical arrange-
ment of nine elements present in both the trade mark applied
for and in most of
the earlier marks, which are inherently
distinctive.

Pleas in law: Infringement of Articles 4 and 7(1)(e) of Regulation
(EC) No 40/94 on the Community trade mark, as well as
misconstruction of a number of provisions of Directive
the Member States
89/104/EEC to approximate the laws of
relating to trade marks. It is asserted, in that regard, that both
Article 2 of Directive 89/104/EEC and Article 4 of Regulation
(EC) No 40/94 acknowledge, expressly and unambiguously, the
intrinsic distinctiveness, not only of the packaging of goods, but
also of the very shape of those goods.

Action brought on 2 January 2008 — Piccoli v OHIM
(Representation of a shell)

(Case T-8/08)

(2008/C 64/91)

Language of the case: Italian

Action brought on 7 January 2008 — Volkswagen v OHIM
(CAR SILHOUETTE III)

(Case T-9/08)

(2008/C 64/92)

Language in which the application was lodged: German

Parties

Applicant: G.M. Piccoli Srl (Alzano Lombardo, Italy) (represented
by S. Giudici, lawyer)

Parties

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

Form of order sought

The applicant claims that the Court should:

— Annul or vary the decision of the First Board of Appeal of
28 September 2007, notified on 23 October 2007, to allow
the registration of Community three-dimensional trade mark
No 4522892 consisting in the stylised shape of a (scallop)
shell, also to distinguish ‘brioches, brioches filled with
creams or custards, jams, chocolate or honey’;

— Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Three-dimensional mark repre-
senting a shell
from four different perspectives (Registration
Application No 4.522.892 for goods in Class 30).

Decision of the Examiner: Rejection of the application for registra-
tion in respect of
‘preparations made from cereals, pastry,
confectionery and ices’.

Applicant: Volkswagen AG (Wolfsburg, Germany)
by H.-P. Schrammek, C. Drzymalla, S. Risthaus, R.
lawyers)

(represented
Jepsen,

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

Form of order sought

— Annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market
(Trade
Marks and Designs) of 6 November 2007, notified on
9 November 2007, in appeal case R 1306/2007-4;

— Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

figurative
Community trade mark concerned: The international
mark ‘CAR SILHOUETTE III’ for goods in Class 12 (international
registration,
European Community, No
W 878 349).

designating

the

Decision of the Examiner: Refusal of protection.

Decision of the Board of Appeal: Appeal dismissed.

Decision of the Board of Appeal: Dismissal of the appeal.