Action brought on 27 August 2010 - Adelholzener Alpenquellen v OHIM (Shape of a bottle with a relief-like depiction of three mountain summits)

(Case T-347/10)

Language in which the application was lodged: German

Parties

Applicant: Adelholzener Alpenquellen GmbH (Siegsdorf, Germany) (represented by O. Rauscher, lawyer)

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

Form 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 9 June 2010 in Case R 1516/2009-1;

Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the three-dimensional mark in the shape of a bottle with a relief-like depiction of three mountain summits for goods in Class 32

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) of Regulation (EC) No 207/2009¹ as the Community trade mark at issue has distinctive character; infringement of Article 37(2) of Regulation (EC) No 207/2009 as the Board of Appeal should not have based its decision on the absence of a disclaimer; and infringement of Article 75(2) of Regulation (EC) No 207/2009 as the applicant was unable to comment on certain depictions on which the decision was based

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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).