Case T-41/09: Action brought on 27 January 2009 — Hipp & Co v OHIM — Nestlé (Bebio)
Date: 2009-01-27
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), trade-mark law

C 82/32

EN

Official Journal of the European Union

4.4.2009

Pleas in law: Infringement of Article 43(2) of Council Regulation
40/94 and/or of Rule 22(3) of Commission Regulation
No 2868/95 (1) as the Board of Appeal erred in its finding the
evidence submitted by the other party to the proceedings before
the Board of Appeal was capable of proving use of Spanish
trade mark registration No 255 186;
Infringement of
Article 8(1)(b) of Council Regulation 40/94 as the Board of
Appeal wrongly assessed that there was a likelihood of confu-
sion between the Community trade mark concerned and
Spanish trade mark registration No 2 529 728; Infringement of
Rules 20(7) of Commission Regulation No 2868/95 as the
Board of Appeal stated inapplicable grounds for refusing to
grant a suspension of proceedings pending determination of the
opposition to Community trade mark application No 3 064 219.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘Bebio’,
goods in classes 5, 29, 30 and 32

for

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:

International

Mark
trade mark registration
No 187 436 of the word mark ‘BEBA’ for goods in classes 5, 29
and 30; Community trade mark registration No 3 043 387 of
the word mark ‘BEBA’ for goods in classes 5, 29 and 30

(1) Commission Regulation (EC) No 2868/95 of 13 December 1995
implementing Council Regulation (EC) No 40/94 on the Community
trade mark (OJ 1995 L 303, p. 1).

Decision of the Opposition Division: Partially upheld the opposi-
tion

Action brought on 27 January 2009 — Hipp & Co v OHIM
— Nestlé (Bebio)

(Case T-41/09)

(2009/C 82/56)

Language in which the application was lodged: English

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation 40/94 as the Board of Appeal wrongly assessed that there
was a likelihood of confusion between the trade marks
concerned

Action brought on 9 February 2009 — Commission v
Antiche Terre

(Case T-51/09)

(2009/C 82/57)

Language of the case: Italian

Parties

Applicant: Hipp & Co (Sachseln, Switzerland) (represented by: A.
Bognár and M. Kinkeldey, lawyers)

Parties

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

Other party to the proceedings before the Board of Appeal: Sociéte
des Produits Nestlé, S.A. (Vevey, Switzerland)

Applicant: Commission of the European Communities (repre-
sented by: A. Dal Ferro, lawyer, V. Joris, Agent)

Defendant: Antiche Terre scarl Società Agricola Cooperativa
(Arezzo, Italy)

Forms 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
case
of
and Designs)
R 1790/2007-2; and

25 November

2008

in

— Order OHIM to pay the costs.

— Order

the defendant

to repay the principal

(from 4 December 1997 for

sum of
EUR 479 332,40, together with the interest accrued at the
rate set out in Article 5.4.3 of the general conditions of the
Contract (ECB rate + 2 %) from the date of receipt of the
sums
sum of
EUR 461 979,00, and from 18 December 1997 for the sum
of EUR 17 353,40) until 1 April 2003, in addition to the
interest accrued at the same rate from 4 January 2004 until
the date of final settlement, less the sum of EUR 461 979
called on and paid on 25 January 2005;

the