CELEX: 62011TN0178
Language: en
Date: 2011-03-18 00:00:00
Title: Case T-178/11: Action brought on 18 March 2011 — Voss of Norway v OHIM — Nordic Spirit (Three-dimensional ‘bottle’ )

14.5.2011   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 145/36
            
         Action brought on 18 March 2011 — Voss of Norway v OHIM — Nordic Spirit (Three-dimensional ‘bottle’)
   (Case T-178/11)
   2011/C 145/61
   Language in which the application was lodged: English
   
      Parties
   
   
      Applicant: Voss of Norway ASA (Oslo, Norway) (represented by: F. Jacobacci and B. La Tella, lawyers)
   
      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   
      Other party to the proceedings before the Board of Appeal: Nordic Spirit AB (pubI) (Stockholm, Sweden)
   
      Form of order sought
   
   
               —
            
            
               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 January 2011 in case R 785/2010-1; and
            
         
               —
            
            
               Order the defendant to pay the costs of the proceedings.
            
         
      Pleas in law and main arguments
   
   
      Registered Community trade mark in respect of which a declaration of invalidity has been sought: The three-dimensional mark representing a ‘bottle’, for goods in classes 32 and 33 — Community trade mark registration No 3156163
   
      Proprietor of the Community trade mark: The applicant
   
      Applicant for the declaration of invalidity of the Community trade mark: The other party to the proceedings before the Board of Appeal
   
      Grounds for the application for a declaration of invalidity: The party requesting the declaration of invalidity grounded its request on absolute grounds for refusal pursuant to Article 52(1)(a) in conjunction with Article 7 of Council Regulation (EC) No 207/2009, and that the proprietor of the Community trade mark acted in bad faith when filing the application pursuant to Article 52(1)(b) of Council Regulation (EC) No 207/2009.
   
      Decision of the Cancellation Division: Rejected the application for invalidity
   
      Decision of the Board of Appeal: Declared the Community trade mark registration invalid
   
      Pleas in law: Infringement of Articles 75, 99 and 7(1)(b) of Council Regulation No 207/2009, as well as infringement of Rule 37(b)(iv) of Commission Regulation (EC) No 2868/95, as the Board of Appeal erred (i) in its motivation by basing it on a new requirement for establishing validity of three-dimensional trademarks, on which the applicant did not had the opportunity to present its comments; (ii) in shifting the onus of proof in violation of fair trials principles; (iii) in misinterpreting and misapplying Article 7(1)(b) of the CTMR; and (iv) by seriously distorting the facts in order to arrive at the wrong conclusion.