Case T-336/08: Action brought on 18 August 2008 — Chocoladefabriken Lindt & Sprüngli v OHIM (Representation of an Easter bunny made of chocolate)
Date: 2008-08-18
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), confectionery product, trade-mark law

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.