Action brought on 19 February 2013 - Cadbury Holdings/OHIM - Société des produits Nestlé (Shape of a four-finger chocolate bar)

(Case T-112/13)

Language in which the application was lodged: English

Parties

Applicant: Cadbury Holdings Ltd (Uxbridge, United Kingdom) (represented by: T. Mitcheson, Barrister, P. Walsh and S. Dunstan, Solicitors)

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

Other party to the proceedings before the Board of Appeal: Société des produits Nestlé SA (Vevey, Switzerland)

Form of order sought

The applicant claims that the Court should:

Annul the Decision of the Second Board of Appeal in Case R 513/2011-2 dated 11 December 2012, except insofar as the Board of Appeal determined that the mark is devoid of inherent distinctive character under Article 7(1)(b); and

Order OHIM to pay the costs of this application and order the intervener to pay the costs of the proceedings before the Cancellation Division and the Board of Appeal.

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 shape of a four-finger chocolate bar for goods in class 30 − Community trade mark registration No 2 632 529

Proprietor of the Community trade mark: The other party to the proceedings before the Board of Appeal

Applicant for the declaration of invalidity of the Community trade mark: The applicant

Grounds for the application for a declaration of invalidity: The grounds of the request for a declaration of invalidity were those laid down in Article 52(1)(a) in conjunction with Article 7(1)(b), (c), (d) and (e)(ii) of Council Regulation No 207/2009

Decision of the Cancellation Division: Declared the Community trade mark invalid

Decision of the Board of Appeal: Annulled the contested decision

Pleas in law: Infringement of Article 52(1)(a) in conjunction with Article 7(1)(b), (c), (d) and (e)(ii) of Council Regulation No 207/2009.

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