Action brought on 9 April 2008 - BCS v OHIM - Deere (Combination of colours green and yellow)

(Case T-137/08)

Language in which the application was lodged: English

Parties

Applicant: BCS SpA (Milan, Italy) (represented by: M. Franzosi, V. Jandoli, F. Santonocito, lawyers)

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

Other party to the proceedings before the Board of Appeal: Deere & Company (Moline, United States)

Form of order sought

Annul the Decision of the Second Board of Appeal of 16 January 2008 in case R 0222/2007-2; and

order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: A figurative mark consisting of the colour combination of green and yellow for goods in classes 7 and 12 - Community trade mark No 63 289

Proprietor of the Community trade mark: Deere & Company

Party requesting the declaration of invalidity of the Community trade mark: The applicant

Decision of the Cancellation Division: Rejection of the request for a declaration of invalidity

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of article 7(3), 52(1)(c) in connection with article 8(4) and article 73(1) of Council Regulation No 40/94, as:

the Board of Appeal ought to have interpreted article 7(3) very strictly and, accordingly, should have imposed a rigorous burden of proof on the other party to the proceedings;

the Board of Appeal failed to recognize the prior de facto trade mark of the applicant; and

the Board of Appeal used contradictory reasoning in its decision.

____________