CELEX: 62008TN0028
Language: en
Date: 2008-01-14 00:00:00
Title: Case T-28/08: Action brought on 14 January 2008 — Mars v OHIM — Ludwig Schokolade (three dimensional mark representing a chocolate bar)

12.4.2008   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 92/31
            
         Action brought on 14 January 2008 — Mars v OHIM — Ludwig Schokolade (three dimensional mark representing a chocolate bar)
   (Case T-28/08)
   (2008/C 92/64)
   Language in which the application was lodged: English
   Parties
   
      Applicant: Mars, Inc. (McLean, United States) (represented by: A. Bryson, Barrister, and G. Mills, Solicitor)
   
      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   
      Other party to the proceedings before the Board of Appeal: Ludwig Schokolade GmbH & Co. KG (Bergisch Gladbach, Germany)
   Form of order sought
   
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               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 October 2007;
            
         
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               order that OHIM bears its own and pays the applicant's costs.
            
         Pleas in law and main arguments
   
      Registered Community trade mark subject of the application for a declaration of invalidity: A three-dimensional mark representing a chocolate bar for goods in classes 5, 29 and 30 — Community trade mark No 818 864
   
      Proprietor of the Community trade mark: The applicant
   
      Party requesting the declaration of invalidity of the Community trade mark: Ludwig Schokolade GmbH & Co. KG
   
      Decision of the Cancellation Division: Rejection of the request for a declaration of invalidity
   
      Decision of the Board of Appeal: Annulment of the Cancellation Division's decision and declaration of invalidity of the Community trade mark
   
      Pleas in law: Infringement of Articles 7(1)(b) and (3), 51(2), 73 and 74(1) of Council Regulation No 40/94, as:
   
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               the Board of Appeal ought to have concluded that the shape in issue was a significant departure from the norms and customs of the relevant sector;
            
         
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               the Board of Appeal required proof that the mark had acquired distinctiveness in every relevant Member State on a country by country basis and not based on whether it had acquired distinctiveness in a substantial part of the Community market for chocolate bars;
            
         
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               the Board of Appeal relied, in the contested decision, on a point which had not previously been raised either by the Office, or by Ludwig Schokolade.