Action brought on 18 March 2011 - Voss of Norway v OHIM - Nordic Spirit (Three-dimensional "bottle")

(Case T-178/11)

Language in which the application was lodged: English

Parties

Applicant: Voss of Norway ASA (Oslo, Norway) (represented by: F. Jacobacci and B. La Tella, lawyers)

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

Other party to the proceedings before the Board of Appeal: Nordic Spirit AB (pubI) (Stockholm, Sweden)

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 12 January 2011 in case R 785/2010-1; and

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 has been sought: The three-dimensional mark representing a "bottle", for goods in classes 32 and 33 - Community trade mark registration No 3156163

Proprietor of the Community trade mark: The applicant

Applicant for the declaration of invalidity of the Community trade mark: The other party to the proceedings before the Board of Appeal

Grounds for the application for a declaration of invalidity: The party requesting the declaration of invalidity grounded its request on absolute grounds for refusal pursuant to Article 52(1)(a) in conjunction with Article 7 of Council Regulation (EC) No 207/2009, and that the proprietor of the Community trade mark acted in bad faith when filing the application pursuant to Article 52(1)(b) of Council Regulation (EC) No 207/2009.

Decision of the Cancellation Division: Rejected the application for invalidity

Decision of the Board of Appeal: Declared the Community trade mark registration invalid

Pleas in law: Infringement of Articles 75, 99 and 7(1)(b) of Council Regulation No 207/2009, as well as infringement of Rule 37(b)(iv) of Commission Regulation (EC) No 2868/95, as the Board of Appeal erred (i) in its motivation by basing it on a new requirement for establishing validity of three-dimensional trademarks, on which the applicant did not had the opportunity to present its comments; (ii) in shifting the onus of proof in violation of fair trials principles; (iii) in misinterpreting and misapplying Article 7(1)(b) of the CTMR; and (iv) by seriously distorting the facts in order to arrive at the wrong conclusion.

____________