Case T-137/08: Action brought on 9 April 2008 — BCS v OHIM — Deere (Combination of colours green and yellow)
Date: 2008-04-09
Institutions: Court of First Instance
Subjects: European Union Intellectual Property Office, action for annulment (EU), agricultural equipment, trade-mark law

7.6.2008

EN

Official Journal of the European Union

C 142/33

Pleas in law and main arguments

Pleas in law and main arguments

for Community

rights: Konsortium
plant
Applicant
Südtiroler Baumschuler, following the transfer of the variety at
issue, Schniga Srl (Application No 1999/0033)

variety

Community plant variety right sought for: Gala-Schnitzer

the application for a
Registered Community trade mark subject of
declaration of
the
colour combination of green and yellow for goods in classes 7
and 12 — Community trade mark No 63 289

invalidity: A figurative mark consisting of

Proprietor of the Community trade mark: Deere & Company

Decision of the CPVO: Community plant variety right granted
(Decisions No EU 18759, OBJ 06-021 and OBJ 06-022)

Party requesting the declaration of invalidity of the Community trade
mark: The applicant

Appeal before the Board of Appeal
Brookfield New Zealand Ltd

lodged by: SNC Elaris and

Decision of the Cancellation Division: Rejection of the request for a
declaration of invalidity

Decision of the Board of Appeal: Annulment of the decision of the
CPVO

Pleas in law: Infringement of Article 59(3) of Council Regulation
No 2100/94 (1) as the objections to the Community plant
variety right do not comply with the said provision;
the
disputed decision is based on requirements to be fulfilled by the
applicant beyond the legislative framework;
the power and
discretion of the President of CPVO have been wrongly assessed.

(1) Council Regulation (EC) No 2100/1994 of 27 July 1994 on Com-

munity plant variety rights (OJ 1994 L 227, p. 1).

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(3), 52(1)(c) in connection
with Article 8(4) and Article 73(1) of Council Regulation
No 40/94, as:

— the Board of Appeal ought to have interpreted Article 7(3)
should have imposed a
very strictly and, accordingly,
rigorous burden of proof on the other party to the proceed-
ings;

— the Board of Appeal failed to recognize the prior de facto

trade mark of the applicant; and

— the Board of Appeal used contradictory reasoning in its deci-

sion.

Action brought on 9 April 2008 — BCS v OHIM — Deere
(Combination of colours green and yellow)

Action brought on 3 April 2008 — Cavankee Fishing and
Others v Commission

(Case T-137/08)

(2008/C 142/60)

Language in which the application was lodged: English

(Case T-138/08)

(2008/C 142/61)

Language of the case: English

Parties

Applicant: BCS SpA (Milan, Italy) (represented by: M. Franzosi, V.
Jandoli, F. Santonocito, lawyers)

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

Other party to the proceedings before the Board of Appeal: Deere &
Company (Moline, United States)

Form of order sought

— Annul

the Decision of

the Second Board of Appeal of

16 January 2008 in case R 0222/2007-2; and

Parties

Limited

(Lifford,

(Killybegs,

Ireland), Mullglen

Ireland), Brendan Gill

Applicants: Cavankee Fishing Co. Ltd (Lifford, Ireland), Ocean
Trawlers
Limited
(Balbriggan, Ireland), Eamon McHugh (Killybegs, Ireland), Joseph
Ireland),
Doherty (Burtonport,
Eileen Oglesby (Burtonport, Ireland), Noel McGing (Killybegs,
Ireland), Larry Murphy (Castletownbere, Ireland), Thomas Flah-
Ireland), Pauric Conneely (Claregalway,
erty (Aran Islands,
Ireland),
Ireland), Cathal
Boyle (Killybegs, Ireland), Eugene Hannigan (Milford, Ireland),
Peter McBride (Downings, Ireland), Hugh McBride (Downings,
Ireland), Patrick Fitzpatrick (Aran Islands,
Ireland), Patrick
O'Malley (Galway, Ireland), Cecil Sharkey (Clogherhead, Ireland)
(represented by: A. Collins, SC, N. Travers, Barrister, D. Barry,
Solicitor)

Island Trawlers Limited (Killybegs,

— order OHIM to pay the costs.

Defendant: Commission of the European Communities