Action brought on 23 June 2009 - Cesea Group Srl v OHIM - Mangini & C. (mangiami)

(Case T-250/09)

Language in which the application was lodged: Italian

Parties

Applicant: Cesea Group Srl (Rome, Italy) (represented by: D. De Simone, lawyer, D. Demarinis, lawyer, J. Wrede, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Mangini & C. Srl (Sestri Levante, Italy)

Form of order sought

Cesea Group Srl seeks the annulment - or, in the alternative, the amendment and limitation, in accordance with its pleas in law - of the decision taken on 20 April 2009 and notified on 24 April 2009 by the Second Board of Appeal of OHIM, by which it decided Case No R 982/2008-2, which had been brought following the outcome of invalidity proceedings No 2063 C brought by Mangini & C. Srl.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Figurative mark containing the term 'mangiami' (application for registration No 3.113.933) for goods in Classes 29, 30 and 32.

Proprietor of the Community trade mark: The applicant.

Applicant for the declaration of invalidity: Mangini & C. Srl.

Trade mark right of applicant for the declaration: Italian registration No 819.926 of the word mark 'MANGINI' for goods and services in Classes 30 and 42; Italian figurative mark No 668.388, which contains the term 'Mangini', for goods and services in Classes 30 and 42; Italian figurative mark No 648.507, which contains the term 'Mangini', for goods in Class 30; international registration No 738.072 of the word mark 'MANGINI' for goods and services in Classes 30 and 42; word mark 'MANGINI' which, in Italy, is well known within the meaning of Article 6bis of the Paris Convention, for 'production of pastries, confectionery, coffee, ices and sweet goods in general, bar, cafeteria and catering services'; and the trade name 'MANGINI', used in Italy by way of normal commercial practice, for 'production of pastries, confectionery, coffee, ices and sweet products in general, bar, cafeteria and catering services'.

Decision of the Cancellation Division: Dismissed the application for a declaration of invalidity.

Decision of the Board of Appeal: Annulled the contested decision and upheld in part the application for a declaration of invalidity.

Pleas in law:

-    Infringement of Rule 40(6) of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark, ¹ in that the Board of Appeal based the decision on an examination of documents which had not been produced before the Cancellation Division, even though the documents in question had not been available and had not been produced within the period specified by the Cancellation Division;

-    Unlawfulness of the declaration of invalidity in relation to the goods in Class 29, which is not covered by the international trade mark of Mangini & C. Srl, and to the goods in Class 30, which are not similar to sweets.

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¹ - OJ L 303 of 15.12.1995, p. 1.