Action brought on 24 September 2012 - Bacardi v OHIM - Granette & Starorežná Distilleries (42 BELOW)

(Case T-435/12)

Language in which the application was lodged: English

Parties

Applicant: Bacardi Co. Ltd (Vaduz, Liechtenstein) (represented by: M. Reinisch, lawyer)

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

Other party to the proceedings before the Board of Appeal: Granette & Starorežná Distilleries a.s. (Ústí nad Labem, Czech Republic)

Form of order sought

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 9 July 2012 in case R 2100/2011-2;

Reject the opposition against the registration of the word-device mark "42 BELOW" No 8391856 for goods in class 33;

Transmit the judgment of the General Court of the European Union to OHIM; and

Order OHIM and the other party to the proceedings before the Board of Appeal to pay all costs and expenses.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark "42 BELOW", for goods in class 33 - Community trade mark application No 8391856

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

Mark or sign cited in opposition: Czech trade mark registration No 263350 for the figurative mark "VODKA 42", for among others goods and services in class 33; Unregistered trade mark "VODKA 42" used in Czech Republic and Slovakia

Decision of the Opposition Division: Rejected the opposition in its entirety

Decision of the Board of Appeal: Upheld the appeal and refused the CTM application for all the goods

Pleas in law:

-    Infringement of Rule 50(2)(g) of Commission Regulation No 2868/95; and

-    Infringement of Article 8(4) of Council Regulation No 207/2009.

____________