Action brought on 26 May 2010 - Rungis Express /HABM - Žito (MARESTO)

(Case T-243/10)

Language in which the application was lodged: German

Parties

Applicant: RUNGIS Express AG (Meckenheim, Germany) (represented by: U. Feldmann, Rechtsanwalt)

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

Other party in the proceedings before the Board of Appeal: ŽITO prehrambena industrija, d.d. (Ljubljana, Slovenia)

Forms 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 11 March 2010 in Case R 691/2009-1;

Dismiss the Defendant's opposition.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: Word mark MARESTO for goods in Class 29.

Proprietor of the marks cited in opposition: ŽITO prehrambena industrija, d.d.

Marks cited in opposition: National pictorial mark depicting a cook and including the word element M·A·E·S·T·R·O for goods in Classes 29 and 30, a national pictorial mark including the word element M•A•E•S•T•R•O for goods in Classes 29, 30 and 43, and the national word mark "BRAVO MAESTRO!" for goods in Classes 29, 30 and 43.

Decision of the Opposition Division: Opposition upheld.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 7(1) (b), (c) and (d) of Regulation (EC) No 207/2009, ¹ on the ground that the marks cited in opposition lacked distinctive character and/or were purely descriptive.

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¹ - Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)