Action brought on 7 February 2008 - Nute Partecipazione and La Perla v OHIM - Worldgem Brands (NIMEI LA PERLA MODERN CLASSIC)
(Case T-59/08)
Language in which the application was lodged: Italian
Parties
Applicants: Nute Partecipazione Spa (Bologna, Italy) and La Perla Srl (Bologna, Italy) (represented by: R. Morresi and A. del Ferro, lawyers)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Other party to the proceedings before the Board of Appeal of OHIM: Worldgem Brands Srl (Olmo di Creazzo, Italy)
Form of order sought
Annul and alter the decision of the Second Board of Appeal of OHIM of 19 November 2007 on the ground of misapplication of Article 8(5) and infringement of Articles 63(6), 73 and 74 of the regulation on the Community trade mark;
in the alternative, annul the decision of the Second Board of Appeal of OHIM of 19 November 2007 on the ground of misapplication of Article 8(5) and infringement of Articles 63(6), 73 and 74 of the regulation on the Community trade mark;
in the further alternative, annul and/or alter the decision of the Second Board of Appeal of OHIM of 19 November 2007 on the ground of misapplication of Article 8(1)(b) of the regulation on the Community trade mark and infringement of Articles 63(6), 73 and 74 of the regulation on the Community trade mark;
in any event, order OHIM and Worldgem Brands Srl, jointly and severally, to pay the costs of all the proceedings, including the costs relating to the proceedings before the Second Board of Appeal of OHIM.
Pleas in law and main arguments
Registered Community trade mark in respect of which a declaration of invalidity has been sought: Community word mark 'NIMEI LA PERLA MODERN CLASSIC' (application for registration No 713.446) for goods in Class 14. That trade mark has already been the subject of an earlier application for a declaration of invalidity. The decision rejecting that earlier application by the First Board of Appeal was annulled by judgment of the Court of First Instance in Case T-137/05
La Perla v
OHIM - Worldgem Brands.
1 Proprietor of the Community trade mark: WORLDGEM BRANDS Srl
Applicant for the declaration of invalidity: the applicant.
Trade mark right of applicant for the declaration: the reputation of a number of 'PERLA' Italian figurative marks for goods in Classes 3, 9, 14, 16, 18, 24, 25 and 35.
Decision of the Cancellation Division: granted the application and declared that the registration of the Community trade mark in question was invalid.
Decision of the Board of Appeal: annulled the contested decision and granted in part the application for a declaration of invalidity.
Pleas in law: infringement of provisions of law and misinterpretation and misapplication of Articles 63, 73 and 74 of Regulation (EC) No 40/94 on the Community trade mark. In the alternative: infringement of provisions of law and misapplication of Article 8(1)(b) of that regulation.
____________1 - Not yet published in the ECR.