Action brought on 10 September 2008 - Murnauer Markenvertrieb v OHIM - Fitne Gesundheit und Wellness (Notfall Bonbons)

(Case T-372/08)

Language in which the application was lodged: German

Parties

Applicant: Murnauer Markenvertrieb GmbH (Trebur, Germany) (represented by: H. Daniel and O.I. Haleen, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Fitne Gesundheits- und Wellness GmbH (Salzhemmendorf, Germany)

Form of order sought

Annul the decision of the Board of Appeal of OHIM of 10 July 2008 in Case R 909/2007-1;

order the defendant to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Word mark 'Notfall Bonbons' for goods in classes 5 and 30 (Community trade mark No 3 563 251)

Proprietor of the Community trade mark: The applicant

Applicant for the declaration of invalidity: Fitne Gesundheits- und Wellness GmbH

Decision of the Cancellation Division: Rejection of the application for a declaration of invalidity of the trade mark concerned.

Decision of the Board of Appeal: Annulment of the decision of the Cancellation Division and granting of the application for a declaration of invalidity of the trade mark concerned.

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation No 40/94, since the trade mark 'Notfall Bonbons' is not descriptive of the protected goods, nor does it lack the requisite distinctive character.

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