Case T-140/08: Action brought on 14 April 2008 — Ferrero v OHIM — Tirol Milch (TiMi KINDERJOGHURT)
Date: 2008-04-14
Institutions: Court of First Instance
Subjects: Austria, European Union Intellectual Property Office, Italy, action for annulment (EU), confectionery product, trade-mark law

7.6.2008

EN

Official Journal of the European Union

C 142/35

Pleas in law and main arguments

Community trade mark concerned: The figurative mark ‘half-smiley’
for goods in classes 14, 18 and 25 — application No 893 580

Decision of the examiner: Refusal of the application for all goods

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) of Council Regu-
lation No 40/94 as the mark acquired the minimum degree of
distinctiveness required to be registered.

Decision of the Board of Appeal: Annulment of the Cancellation
Division's decision and dismissal of the request for declaration
of invalidity

Pleas in law: The Second Board of Appeal erred in establishing
that the previous final decisions between the same parties and
concerning the same trade mark are binding in the subsequent
action for invalidity before the Cancellation Division and the
Board of Appeal; Infringement of Article 8(1)(b) and 8(5) of
Council Regulation No 40/94 as the challenged trade mark is
similar to an earlier trade mark.

Action brought on 14 April 2008 — Ferrero v OHIM —
Tirol Milch (TiMi KINDERJOGHURT)

Action brought on 2 April 2008 — Italian Republic v
Commission of the European Communities

(Case T-140/08)

(2008/C 142/63)

Language in which the application was lodged: English

(Case T-142/08)

(2008/C 142/64)

Language of the case: Italian

Parties

Applicant: Ferrero SpA (Alba, Italy) (represented by: C. Gielen,
lawyer, and F. Jacobacci, lawyer)

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

Other party to the proceedings before the Board of Appeal: Tirol
Milch rGmbH (Innsbruck, Austria)

Form of order sought

— Annul the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal market (Trade Marks
and Designs) of 30 January 2008 in case R 628/2007-2;
and

— order OHIM to pay the costs.

Pleas in law and main arguments

the application for a
Registered Community trade mark subject of
declaration of
invalidity: A word mark consisting of the words
‘TiMi KINDERJOGHURT’ for goods in class 29 — application
No 792 978

Proprietor of the Community trade mark: Tirol Milch reg. Gen. mbH

Parties

Applicant: Italian Republic (represented by: P. Gentili, avvocato
dello Stato)

Defendant: Commission
the
European Personnel Selection Office

of

European Communities,

Form of order sought

The applicant claims that the Court should:

— annul Notice of open competitions EPSO/AD/116/08 and
EPSO/AD/117/08 to constitute a reserve list comprising
30 Administrator posts (AD8) and 20 Principal Adminis-
trator posts (AD11) in the field of fraud prevention;

— annul Notice of open competition EPSO/AST/45/08 to
constitute a reserve list comprising 30 Assistant posts
(AST4) in the field of fraud prevention.

Pleas in law and main arguments

The pleas in law and principal arguments are similar to those
put forward in Case T-117/08 Italy v Commission (1).

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

(1) Not yet published in the Official Journal of the European Union.

Decision of the Cancellation Division: Invalidity of the challenged
trade mark