Notice for the OJ

 

Action brought on 7 January 2004 by Shaker s.a.s. di Lucia Laudato & C. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-7/04)

(Language of the case: Italian)

An action against the Office for Harmonisation in the Internal Market was brought before the Court of First Instance of the European Communities on 7 January 2004 by Shaker s.a.s. di Lucia Laudato & C., represented by F. Sciaudone, lawyer.

The other party to the proceedings before the Board of Appeal was Liminana y Botella S.L.

The applicant claims that the Court should:

-    annul the contested decision and/or vary it by rejecting the opposition by Liminana y Botella S.L., and by granting the application for registration of the Community trade mark submitted by the applicant;

-    order OHIM to pay the costs of these proceedings.

Pleas in law and main arguments

Party seeking the registration of the Community trade mark:

The applicant

Relevant Community mark:

Figurative mark 'Limoncello della Costiera Amalfitana-Shaker' - Registration application No 1,267,434 for products in Classes 29, 32 and 33 (jellies, preserves, jams and liqueurs), subsequently limited to Classes 29 and 33.

Owner of the mark or distinctive sign asserted in the opposition proceedings:

Liminana y Botella S.L.

Mark or distinctive sign asserted in the opposition proceedings:

Spanish word mark 'limonchelo', for products in Class 33.

Opposition Division's decision:

Opposition upheld and application for registration rejected, limited to Class 33.

Appeal Board's decision:

Appeal dismissed.

Grounds of the appeal:

Wrong application of Article 8(1)(b) of Regulation (EC) No 40/94 (likelihood of confusion), failure to state reasons and misuse of powers by manifest error of assessment and inconsistency with the Examiner's decision of 23 November 1999 regarding partial rejection of the registration of the mark concerned.

____________