Case T-510/08: Action brought on 20 November 2008 — Toqueville v OHIM — Schiesaro (TOCQUEVILLE 13)
Date: 2008-11-20
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), trade-mark law

24.1.2009

EN

Official Journal of the European Union

C 19/35

Action brought on 24 November 2008 — Bang & Olufsen
v OHIM (Representation of a loudspeaker)

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

(Case T-508/08)

(2009/C 19/65)

Other party to the proceedings before the Board of Appeal of OHIM:
Marco Schiesaro (Milan, Italy)

Language of the case: English

Form of order sought

Parties

— Annul the decision of the Second Board of Appeal of OHIM
of 26 August 2008 in Case R 829/2008-2 Toqueville Srl v
M. Schiesaro.

Applicant(s): Bang & Olufsen A/S (Struer, Denmark) (represented
by K. Wallberg, lawyer)

— Order the defendant to pay the costs.

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

Form of order sought

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of
invalidity has been sought: word mark ‘TOCQUEVILLE 13’ (Com-
munity trade mark No 1.406.982)
to designate goods and
services in Classes 25, 41 and 42.

— Annul paragraph 2 the decision of the First Board of Appeal
the Office for Harmonisation in the Internal Market
of
(Trade Marks and Designs) of 10 September 2008 in case
R 497/2005-1; and

Proprietor of the Community trade mark: the applicant.

Applicant for the declaration of invalidity: Marco Schiesaro.

— Order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The three-dimensional mark
representing a loudspeaker for goods in classes 9 and 20 —
application No 3 354 371

Decision of the examiner: Rejection of the application

Decision of the Board of Appeal: Partial annulment of the decision
of the examiner

Pleas in law: Infringement of Article 63(6) of Council Regulation
No 40/94 as the Board of Appeal failed to take the necessary
measures to comply with the judgment of the Court of Justice;
Infringement of Article 7(1)(e)(iii) of Council Regulation
No 40/94 as the Board of Appeal wrongly took the view that
the Community trade mark concerned is a sign which consists
exclusively of a shape which gives substantial value to the
goods.

Decision challenged before the Board of Appeal: the decision of the
Cancellation Division to grant the application for partial revoca-
tion of the trade mark in question.

Decision of the Board of Appeal: declaration that the appeal
is
inadmissible and rejection of a request for restitutio in integrum
as regards the time-limit for filing an appeal against the decision
of the Cancellation Division.

Pleas in law: Infringement of Articles 73 and 78 if Regulation
(EC) No 40/94 on the Community trade mark, Articles 2 and 9
of Regulation (EC) No 2869/95 on the fees payable to the
Office for Harmonization in the Internal Market and Article 50
of Regulation (EC) No 2868/95 implementing Regulation (EC)
No 40/94.

Action brought on 26 November 2006 — Laboratorios
Byly v OHIM — Ginis (BILLY'S Products)

(Case T-514/08)

(2009/C 19/67)

Action brought on 20 November 2008 — Toqueville v
OHIM — Schiesaro (TOCQUEVILLE 13)

Language in which the application was lodged: Spanish

(Case T-510/08)

(2009/C 19/66)

Parties

Language in which the application was lodged: Italian

Parties

Applicant: Laboratorios Byly, SA (Barcelona, Spain) (represented
by: L. Plaza Fernandez-Villa, lawyer)

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

Applicant: Toqueville Srl (Milan, Italy) (represented by: S. Bariatti,
I. Palombella and E. Cucchiara, lawyers)

Other party to the proceedings before the Board of Appeal of OHIM:
Vasileios Ginis (Athens, Greece)