Action brought on 5 February 2007 - Borco-Marken-Import Matthiesen v OHIM (α)

(Case T-23/07)

Language of the case: German

Parties

Applicant: Borco-Marken-Import Matthiesen GbmH & Co. KG (Hamburg, Germany) (represented by M. Wolter, lawyer)

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

Form of order sought

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 30 November 2006 in Case R 0808/2006-4;

Declare that the provisions of Article 7(1)(b) and (c) and of Article 7(2) of Regulation (EC) 40/94 do not preclude publication of the mark applied for in respect of goods in Class 33 ('alcoholic beverages (excluding beer), wines, sparkling wines and beverages containing wine');

Order the Office for Harmonisation in the Internal Market to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The figurative mark 'α' for goods in Class 33 (Application No 4 634 663).

Decision of the Examiner: Rejection of the application.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation (EC) No 40/94, ¹ in that it is wrongly held that absolute grounds for refusal exist. Furthermore, the scope and meaning of Article 12 of Regulation (EC) No 40/94 are misconstrued.

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¹ - Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).