Case T-331/08: Action brought on 11 August 2008 — REWE-Zentral v OHIM — Grupo Corporativo Teype (Solfrutta)
Date: 2008-08-11
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), foodstuff, trade-mark law

C 260/16

EN

Official Journal of the European Union

11.10.2008

Pleas in law and main arguments

Form of order sought

Applicant for the Community trade mark: The other party to the
proceedings before the Board of Appeal

— Annul the decision of the First Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 14 April 2008 in case R 1232/2007-1;

Community trade mark concerned: The figurative mark ‘MANGO
adorably’ for goods in class 3

— Reject the registration of the Community trade mark appli-

cation No 4 195 368; and

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

Mark or sign cited: French trade mark registration No 33 209 849
of the word mark ‘ADIORABLE’ for goods in class 3; French
trade mark registration No 94 536 564 of the word mark
‘J'ADORE’ for various goods, amongst which goods in class 3;
international trade mark registration No 811 001 of the word
mark ‘ADIORABLE’ for various goods, amongst which goods in
class 3; international trade mark registration No 687 422 of the
word mark ‘J'ADORE’ for various goods, amongst which goods
in class 3

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

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Articles 8(1)(b) and 8(5) of Council
Regulation No 40/94 as the Board of Appeal erred in its finding
that there was no likelihood of confusion between the trade
marks concerned and that the use of the trade mark applied for
would not take unfair advantage of the reputation of earlier
trade marks, on the wrong reasoning that under both legal
grounds the trade marks concerned are not sufficiently similar.

Action brought on 4 August 2008 — G-Star Raw Denim v
OHIM — ESGW Holdings (G Stor)

(Case T-309/08)

(2008/C 260/29)

Language in which the application was lodged: English

Parties

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The other party to the
proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark ‘G Stor’ for
goods in class 9

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

Mark or sign cited: Benelux trade mark registration No 545 551
of the word mark ‘G-STAR’ for goods in class 25; Community
trade mark registration No 3 445 401 of the word/figurative
mark ‘G-STAR’ for goods in class 9 and 25; Community trade
mark registration No 3 444 262 of the word mark ‘G-Star’ for
goods in class 9 and 25; earlier well-known trade mark ‘G-Star’
protected in various countries for goods in class 25; Community
trade mark registration No 3 444 171 of the mark ‘G-STAR
RAW DENIM’ for goods in class 9 and 35; Dutch trade name
G-Star International B.V.

Decision of the Opposition Division: Allowed the opposition and
rejected the application in its entirety

Decision of the Board of Appeal: Annulment of the contested deci-
sion and rejection of the opposition

Pleas in law: Infringement of Article 8(5) of Council Regulation
No 40/94 as the Board of Appeal applied the wrong criteria
when assessing the required similarity between the trade marks
concerned and the required detriment to the earlier trade marks.
In addition, the Board of Appeal also made an incorrect assess-
ment of the facts with regard to the abovementioned assess-
ments.

Action brought on 11 August 2008 — REWE-Zentral v
OHIM — Grupo Corporativo Teype (Solfrutta)

(Case T-331/08)

(2008/C 260/30)

Applicant: G-Star Raw Denim Kft. (Budapest, Hungary) (repre-
sented by: G. Vos, lawyer)

Language in which the application was lodged: English

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

Parties

Other party to the proceedings before the Board of Appeal: ESGW
Holdings Ltd (Tortola, British Virgin Islands)

Applicant: REWE-Zentral AG (Cologne, Germany) (represented
by: A. Bognár and M. Kinkeldey, lawyers)

11.10.2008

EN

Official Journal of the European Union

C 260/17

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

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

Other party to the proceedings before the Board of Appeal: Grupo
Corporativo Teype, SL (Madrid, Spain)

Form of order sought

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 21 May 2008 in case R 1679/2007-2; and

— annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 11 June 2008 (Appeal Case R 1332/2005-
4); and

— order the defendant to pay the costs.

— Order the defendant to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘Solfrutta’ for
goods in classes 29, 30 and 32

Proprietor of the mark or sign cited in the opposition proceedings: The
other party to the proceedings before the Board of Appeal

or

sign cited: Community

trade mark registration
Mark
No 1 687 722 of the word mark ‘FRUTISOL’ for goods in
class 32; Spanish trade mark registration No 2 018 327 of the
word mark ‘FRUTISOL’ for goods in class 32

Community trade mark concerned: A three-dimensional mark,
representing an Easter bunny made of chocolate, for goods in
Class 30 (Application No 3 844 446).

Decision of the Examiner: Rejection of the application.

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

Pleas in law: Breach of Article 7(1)(b) and (c) of Regulation (EC)
No 40/94 (1), as the trade mark applied for has the necessary
distinctive character and its availability does not have to be
preserved. Furthermore, the trade mark applied for demonstrates
the purposes of
distinctiveness acquired through use for
Article 7(3) of Regulation No 40/94.

Decision of
partially

the Opposition Division: Upheld the opposition

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

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

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94 as the Board of Appeal erred in not taking into
account the alleged weak distinctiveness of
the earlier trade
marks. Likewise, when assessing only the similarity of the single
elements of the trade marks concerned, the Board of Appeal did
not sufficiently take into account that the most relevant aspect
in the framework of such assessment is the overall impression
conveyed by the trade marks concerned.

Action brought on 18 August 2008 — Chocoladefabriken
Lindt & Sprüngli v OHIM (Representation of an Easter
bunny made of chocolate)

(Case T-336/08)

(2008/C 260/31)

Language in which the application was lodged: German

Parties

Applicant: Chocoladefabriken Lindt & Sprüngli AG (Kilchberg,
Switzerland) (represented by: R. Lange, E. Schalast and G. Hild,
lawyers)

Action brought on 18 August 2008 — Chocoladefabriken
Lindt & Sprüngli v OHIM (Representation of a reindeer
made of chocolate)

(Case T-337/08)

(2008/C 260/32)

Language in which the application was lodged: German

Parties

Applicant: Chocoladefabriken Lindt & Sprüngli AG (Kilchberg,
Switzerland) (represented by: R. Lange, E. Schalast and G. Hild,
lawyers)

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 12 June 2008 (Appeal Case R 780/2005-4);
and

— order the defendant to pay the costs.