Notice for the OJ

 

Action brought on 31 December 2004 by SUCCESS-MARKETING Unternehmensberatungsgesellschaft m.b.H. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-506/04)

Language of the application: German

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 31 December 2004 by SUCCESS-MARKETING Unternehmensberatungsgesellschaft m.b.H., Linz (Austria), represented by G. Secklehner and C. Ofner, lawyers, with an address for service in Luxembourg.

The other party before the Board of Appeal was CHIPITA INTERNATIONAL S.A. INTERNATIONAL DIVISION, Athens.

The applicant claims that the Court should:

-    set aside the decision of 15 October 2004 of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Case R 39/2004-2);

-     order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity is sought:

The figurative mark PAN SPEZIALITÄTEN for goods in Class 30 (prepared baking mixtures for bread, cakes, bread rolls, croissants, pizzas...) - Community trade mark No 382 374.

Proprietor of the Community trade mark:

CHIPITA INTERNATIONAL S.A. INTERNATIONAL DIVISION

Applicant for declaration of invalidity of the Community trade mark:

The applicant

Decision of the Cancellation Division:

Rejection of the application for a declaration of invalidity.

Decision of the Board of Appeal:

Dismissal of the appeal.

Pleas in law:

- The registered trade mark is devoid of any distinctive character within the meaning of Article 7(1)(b) of Regulation (EC) No 40/94.

- The trade mark is descriptive and is thus not capable of being protected under Article 7(1)(c) of the Regulation as regards goods containing cereals or manufactured with cereal products. The trade mark is deceptive in the sense of Article 7(1)(g) of the Regulation as regards those goods not containing cereals or not manufactured with cereal products.

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