Action brought on 31 July 2009 - Tilda Riceland v OHIM - Siam Grains (BASMALI LONG GRAIN RICE RIZ LONG DE LUXE)

(Case T-304/09)

Language in which the application was lodged: English

Parties

Applicants: Tilda Riceland Ltd (Gurgaon, India) (represented by: S. Malynicz, Barrister, D. Sills and N. Urwin, Solicitors)

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

Other party to the proceedings before the Board of Appeal: Siam Grains Company Limited (Bangkok, Thailand)

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 19 March 2009 in case R 513/2008-1; and

Order the defendant and the other party to the proceedings before the Board of Appeal to pay their own costs and those of the applicant

Pleas in law and main arguments

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

Community trade mark concerned: The figurative mark "BASMALI LONG GRAIN RICE RIZ LONG DE LUXE", for goods in class 30

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

Mark or sign cited: A non-registered trade mark of the word "BASMATI" used for rice and a sign consisting of the word "BASMATI" used in the course of trade designating a class of goods, namely rice

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(4) Council Regulation 207/2009 as the Board of Appeal wrongly based its decision solely upon an interpretation of the provision which fails to take into account national rules and judicial decisions delivered in the Member State concerned; secondly, the Board of Appeal failed to apply the law of a Member State, namely the United Kingdom, in relation to the form of action known as the "extended form of passing off"; thirdly, the Board of Appeal erred in requiring that the applicant must hold proprietary rights to the sign "BASMATI"; finally, the Board of Appeal erred in holding that the word "BASMATI" is generic.

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