Action brought on 29 May 2012 - CEDC International v OHIM - Underberg (Shape of a blade of grass in a bottle)

(Case T-235/12)

Language in which the application was lodged: English

Parties

Applicant: CEDC International sp. z o.o. (Warsaw, Poland) (represented by: M. Siciarek, lawyer)

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

Other party to the proceedings before the Board of Appeal: Underberg AG (Dietlikon, Suisse)

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 26 March 2012 in case R 2506/2010-4;

Order OHIM to bear the costs of the proceedings at hand.

Pleas in law and main arguments

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

Community trade mark concerned: The figurative mark with the description "the object of the trade mark is a greeny-brown blade of grass in a bottle, the length of the blade of grass is approximately three-quarters the height of the bottle", for goods in class 33 - Community trade mark application No 33266

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

Mark or sign cited in opposition: French trade mark registration No 95588457 of the three-dimensional mark representing a bottle with a strand of grass for goods in class 33; German trade mark registration No 39848553; Polish trade mark registration No 62018; Polish trade mark registration No 62081 for goods in class 33; Polish trade mark registration No 85811 for goods in class 33; Japanese trade mark registration No 2092826 for goods in class 28; French trade mark registration No 98746752 of the three-dimensional mark representing a bottle with a strand of grass for goods in class 33; Non-registered trade mark used in the course of trade in Germany in connection with "vodka"

Decision of the Opposition Division: Rejected the opposition in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law:

-    Infringement of the principle of legality;

-    Infringement of Article 15(1)(a) of Council Regulation No 207/2009 and Rule 22(3) of Commission Regulation No 2868/95 and consequently also Articles 8(1)(a), 42(2) and (3) of Council Regulation No 207/2009.

____________