Action brought on 4 January 2008 - Nestlé v OHIM - Master Beverage Industries (Golden Eagle Deluxe)

(Case T-7/08)

Language in which the application was lodged: English

Parties

Applicant: Société des Produits Nestlé SA (Vevey, Switzerland) (represented by: A. von Mühlendahl, lawyer)

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

Other party to the proceedings before the Board of Appeal: Master Beverage Industries Pte Ltd (Singapore, Singapore)

Form of order sought

Annul the decision of the defendant's Second Board of Appeal of 1 October 2007, Case R 1312/2006-2 (CTM 3 157 534);

decide that the contested CTM application No 3 157 534 RED MUG device with 'Golden Eagle Deluxe' must be rejected;

order the defendant to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal;

order Master Beverage, the other party to the proceedings before the Board of Appeal, to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal, in case it should become an intervening party in this case.

Pleas in law and main arguments

Applicant for the Community trade mark: Master Beverage Industries Pte Ltd

Community trade mark concerned: The figurative mark 'Golden Eagle Deluxe' for goods in class 30 - application No 3 157 534

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

Mark or sign cited: The Community, international and national figurative marks and word marks 'Red Cup', 'Gold Blend' and representations of a cup for, inter alia, coffee

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

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Violation of Article 8(1)(b) and 8(5) of Council Regulation No 40/94, as the conflicting trade marks have a high degree of visual similarity because of an identical arrangement of nine elements present in both the trade mark applied for and in most of the earlier marks, which are inherently distinctive.

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