Action brought on 17 March 2011 - Rivella International v OHIM - Baskaya di Baskaya & C. (BASKAYA)
(Case T -170/11)
Language in which the application was lodged: German
Parties
Applicant: Rivella International AG (Rothrist, Switzerland) (represented by: C. Spintig, U. Sander and H. Förster, lawyers)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Other party to the proceedings before the Board of Appeal: Baskaya di Baskaya & C. s.a.s. (Grosseto, Italy)
Form of order sought
Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 10 January 2011 in Case R 534/2010-4;
Order the defendant to pay the costs.
Pleas in law and main arguments
Applicant for a Community trade mark: Baskaya di Baskaya & C. s.a.s.
Community trade mark concerned: Figurative mark including word element 'BASKAYA' for goods in Classes 29, 30 and 32.
Proprietor of the mark or sign cited in the opposition proceedings: The applicant.
Mark or sign cited in opposition: International registered figurative mark including the word element 'Passaia' for goods in Class 32.
Decision of the Opposition Division: Rejection of the opposition.
Decision of the Board of Appeal: Dismissal of the appeal.
Pleas in law: Infringement of Article 42(2) and (3) of Regulation (EC) No 207/2009,
1 in that the Board of Appeal failed to apply Article 5 of the German-Swiss Agreement of 13 April 1892 on mutual protection of patents, trade marks and designs and for that reason erred in law by failing to have regard to the proof of use adduced by the applicant.
____________1 - Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).