Action brought on 23 March 2010 - Pieno žvaigždės v OHIM - Fattoria Scaldasole (Iogurt.)

(Case T-135/10)

Language in which the application was lodged: English

Parties

Applicant: AB "Pieno žvaigždės" (Vilnius, Lithuania) (represented by: I. Lukauskienė and R. Žabolienė, lawyers)

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

Other party to the proceedings before the Board of Appeal: Fattoria Scaldasole Srl (Monguzzo, Italy)

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 18 January 2010 in case R 1070/2009-2; and

Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

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

Community trade mark concerned: The figurative mark "Iogurt.", for goods in class 29

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

Mark or sign cited: Lithuanian trade mark registration of the figurative mark "jogurtas", for goods in class 29; Community trade mark registration of the figurative mark "jogurt", for goods in class 29

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

Decision of the Board of Appeal: Deemed the appeal not to have been filed

Pleas in law: Infringement of Article 60 of Council Regulation No 207/2009 in conjunction with Article 8 of Commission Regulation No 2869/95¹ as the Board of Appeal wrongly concluded that the fee for appeal was not paid within the prescribed time-limit of two months from the date of notification of the appealed decision.

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¹ - Commission Regulation (EC) No 2869/95 of 13 December 1995 on the fees payable to the Office for Harmonization in the Internal Market (Trade Marks and Designs) (OJ L 303, p. 33)