Source: EURLEX
Language: en
Format: md

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| 30.4.2004 | EN | Official Journal of the European Union | C 106/66 |

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Action brought on 9 January 2004 by ‘Almdudler-Limonade’ A. & S. Klein against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-12/04)

(2004/C 106/136)

Language of the case: German

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 9 January 2004 by ‘Almdudler-Limonade’ A. & S. Klein, of Vienna, represented by G. Schönherr, lawyer.

The applicant claims that the Court should:

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| — | give a decision in the case and amend Decision R 490/2003-2 of the Second Board of Appeal of the Office for Harmonisation in the Internal Market of 5 November 2003 so that its Community trade mark application No 2 193 753 is allowed; |

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| — | alternatively, set aside Decision R 490/2003-2 of the Second Board of Appeal of the Office for Harmonisation in the Internal Market of 5 November 2003 and remit the case to the Office for a fresh hearing and decision; |

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| — | order the Office for Harmonisation in the Internal Market to pay the applicant's representative within 14 days the costs of these proceedings and those before the Board of Appeal. |

Pleas in law and main arguments:

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| Community trade mark sought: | Three-dimensional mark in the shape of a lemonade bottle – Application No 2 193 753 |
| Goods or services: | Goods in Class 32 (herbal lemonade) |
| Decision challenged before the Board of Appeal: | Registration rejected by the examiner |
| Decision of the Board of Appeal: | Appeal dismissed |
| Pleas in law: | |  |  | | --- | --- | | — | The mark applied for displays more than the required minimum distinctiveness. |  |  |  | | --- | --- | | — | The relevant consumers are capable of distinguishing goods using this shape of packaging from goods of other commercial origin. |  |  |  | | --- | --- | | — | The distinctiveness is even greater if the contents of the bottle are taken into account. | |

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