Action brought on 15 November 2010 - Reber v OHIM - Klusmeier (Wolfgang Amadeus Mozart PREMIUM)

(Case T -530/10)

Language in which the application was lodged: German

Parties

Applicant: Reber (Bad Reichenhall, Germany) (represented by: O. Spuhler and M. Geitz, laywers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Ms Anna Klusmeier (Bielefed, Germany)

Form of order sought

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 September 2010 in Case R 363/2008-4;

Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Predecessor in title of Ms Anna Klusmeier.

Community trade mark concerned: Word mark 'Wolfgang Amadeus Mozart PREMIUM' for goods in Classes 30 and 32.

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

Mark or sign cited in opposition: German figurative marks which contain the word element 'W. Amadeus Mozart' for the following goods and sservices: bakers' wares, confectionery, chocolate confectionery and sugar confectionery, catering in a café and teashop.

Decision of the Opposition Division: Rejection of the opposition.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Infringement of Article 42(2)(1) in conjunction with Article 42(3) of Regulation (EC) No 207/2009, ¹ since the evidence of use put forward by the applicant is a concrete indication of the form of use of the mark cited in opposition 'W. Amadeus Mozart', and of Article 15(1)(2)(a) of Regulation (EC) No 207/2009, since it was proven that the mark cited in opposition is clearly used as a trade mark.

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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).