Action brought on 3 January 2012 - Olive Line International v OHIM - Carapelli Firenze (Maestro de Oliva)

(Case T-4/12)

Language in which the application was lodged: Spanish

Parties

Applicant: Olive Line International, SL (Madrid, Spain) (represented by: M. Aznar Alonso, lawyer)

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

Other party to the proceedings before the Board of Appeal: Carapelli Firenze SpA (Tavarnelle Val di Pesa (Florence), Italy)

Form of order sought

The applicant claims that the Court should:

-    declare the present action admissible and find that the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 September 2011 in Case R 1612/2010-2 is inconsistent with Council Regulation No 40/94 on the Community trade mark (now Regulation No 297/2009), in so far as that decision annulled the decision of the Opposition Division of OHIM of 20 July 2010 in opposition proceedings No B 1344995, and rejected the application to register as a Community trade mark international mark No 938.133 for part of the goods in Classes 29 and 30 in respect of which registration was sought;

-    order the defendant, and where appropriate the intervener, to pay all the costs of the proceedings, including those incurred in the opposition and appeal proceedings before OHIM.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: figurative mark with the word element 'Maestro de Oliva' for goods in Classes 29 and 30

Proprietor of the mark or sign cited in the opposition proceedings: Carapelli Firenze SPA

Mark or sign cited in opposition: national word mark 'MAESTRO' for goods in Classes 29 and 30

Decision of the Opposition Division: opposition rejected

Decision of the Board of Appeal: appeal upheld and application rejected in relation to part of the goods in respect of which registration was sought

Pleas in law: Infringement of Article 15(1)(a) and related articles of Regulation No 207/2009, since the use made by the defendant of the opposing mark constitutes a deliberate change in the original concept of the mark represented by the opposing mark and, therefore, substantially alters the distinctive character of the mark 'MAESTRO', and infringement of Article 8(1)(b) of Regulation No 207/2009, since there is no likelihood of confusion between the conflicting marks.

____________