Action brought on 14 November 2008 - Sun World International v OHIM - Kölla Hamburg Overseas Import (SUPERIOR SEEDLESS)

(Case T-493/08)

Language in which the application was lodged: English

Parties

Applicant: Sun World International LLC (Bakersfield, United States) (represented by: M. Holah, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Kölla Hamburg Overseas Import GmbH & Co. KG (Hamburg, Germany)

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 3 September 2008 in case R 1378/2007-1; and

Order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The word mark "SUPERIOR SEEDLESS" for goods in class 31 - Community trade mark registration No 610 980

Proprietor of the Community trade mark: The applicant

Party requesting the declaration of invalidity of the Community trade mark: The other party to the proceedings before the Board of Appeal

Decision of the Cancellation Division: Partial invalidity of the Community trade mark concerned

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Articles 7(3) and 51(2) of Council Regulation No 40/94 as the Board of Appeal: (i) wrongly identified the relevant public; (ii) wrongly refused to allow a withdrawal of the Community trade mark registration in respect of some of the goods in the specification; (iii) made an unlawful assumption based on the lack of a United Kingdom or Irish registration; and (iv) incorrectly assessed the evidence filed.

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