Case T-230/08: Action brought on 17 June 2008 — Asenbaum Fine Arts v OHIM (WIENER WERKSTÄTTE)
Date: 2008-06-17
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), art trade, lighting equipment, trade-mark law

C 223/48

EN

Official Journal of the European Union

30.8.2008

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

Action brought on 17 June 2008 — Asenbaum Fine Arts v
OHIM (WIENER WERKSTÄTTE)

Other party to the proceedings before the Board of Appeal of OHIM:
Schwarzbräu GmbH (Zusmarshausen, Germany)

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 8 April 2008 (Case R 1124/2004-4);

— cancel Community trade mark No 505 503 ‘Alaska’ entirely,
on account of the existence of absolute grounds for refusal;

— order the defendant to pay the costs;

— in the alternative to the second head of claim, declare Com-
munity trade mark No 505 503 ‘Alaska’ invalid in respect,
at least, of the following goods: ‘Mineral and aerated waters
and other non-alcoholic drinks in class 32’.

Pleas in law and main arguments

(Case T-230/08)

(2008/C 223/84)

Language of the case: German

Parties

Applicant: Asenbaum Fine Arts Ltd (London, United Kingdom)
(represented by: P. Vögel, lawyer)

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

Form of order sought

— Alter the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market of 10 April
2008 (R 1573/2006-4) so as to allow the applicant's appeal
of 29 November 2006 in its entirety, or in the alternative,
for Classes 6, 11 (excluding lamps
to allow the appeal
(electric), fitted lamps, ceiling lamps and floor lamps), 14
(excluding chocolates), 16, 20, 21 (excluding chocolates) and
34;

Registered Community trade mark in respect of which a declaration of
invalidity has been sought: Word mark ‘Alaska’ for goods in class
32 (Community trade mark No 505 503).

In the alternative annul the contested decision and refer the
matter back to the Office for Harmonisation in the Internal
Market to complete the proceedings;

Proprietor of the Community trade mark: Schwarzbräu GmbH.

— Order the Office for Harmonisation in the Internal Market
to pay the costs of the proceedings, including the costs of
the appeal proceedings.

Applicant for the declaration of invalidity: The applicant.

Pleas in law and main arguments

Decision of the Cancellation Division: Application for a declaration
of invalidity of the trade mark concerned granted in part.

Community trade mark concerned: Word mark ‘WIENER WERK-
STÄTTE’ for goods in Classes 6, 11, 14, 16, 20, 21 and 34
(Application No 4 133 501).

Decision of the Board of Appeal: Annulment of the contested deci-
sion and dismissal of the application for a declaration of inva-
lidity of the trade mark concerned.

Decision of the Examiner: Application rejected.

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

Pleas in law:
Regulation (EC) No 40/94 (1).

Infringement of Article 7(1)(b),

(c) and (g) of

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation
(EC) No 40/94 (1) in that the trade mark applied for is neither
descriptive nor devoid of distinctive character.

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

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

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

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