Action brought on 28 October 2013 – Bimbo v OHIM – Cafe' do Brasil (Caffè KIMBO Espresso Napoletano)

(Case T-569/13)

Language in which the application was lodged: English

Parties

Applicant: Bimbo, SA (Barcelona, Spain) (represented by: N. Fernández Fernández-Pacheco, lawyer)

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

Other party to the proceedings before the Board of Appeal: Cafe' do Brasil SpA (Melito di Napoli, Italy)

Form of order sought

The applicant claims that the Court should:

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 August 2013 given in Case R 1561/2012-4;

Order the intervener to pay the costs of proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark in red, gold, white and black containing the verbal elements “Caffè KIMBO Espresso Napoletano” for a range of goods and services in Classes 30, 32 and 43 – Community trade mark application No 4 037 933

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited in opposition: Spanish trade mark No 291 655 for the word “BIMBO” for goods in Class 30 and earlier well-known mark in Spain “BIMBO” for goods in Class 30

Decision of the Opposition Division: Rejected the opposition in part

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) and 8(5) CTMR.