Action brought on 27 January 2009 - Hipp & Co v OHIM - Nestlé (Bebio)

(Case T-41/09)

Language in which the application was lodged: English

Parties

Applicant: Hipp & Co (Sachseln, Switzerland) (represented by: A. Bognár and M. Kinkeldey, lawyers)

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

Other party to the proceedings before the Board of Appeal: Sociéte des Produits Nestlé, S.A. (Vevey, Switzerland)

Form of order sought

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 25 November 2008 in case R 1790/2007-2; and

Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark "Bebio", for goods in classes 5, 29, 30 and 32

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

Mark or sign cited: International trade mark registration No 187 436 of the word mark "BEBA" for goods in classes 5, 29 and 30; Community trade mark registration No 3 043 387 of the word mark "BEBA" for goods in classes 5, 29 and 30

Decision of the Opposition Division: Partially upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 40/94 as the Board of Appeal wrongly assessed that there was a likelihood of confusion between the trade marks concerned

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