Action brought on 15 January 2009 - Storck v OHIM (Mouse-shaped chocolate)

(Case T-13/09)

Language of the case: German

Parties

Applicant: August Storck KG (Berlin, Germany) (represented by P. Goldenbaum, T. Melchert and I. Rohr, lawyers)

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

Form of order sought

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 12 November 2008 (R 185/2006-4); and

Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: a three-dimensional mark, which represents a mouse made out of chocolate, for goods in Class 30 (Application No 4 490 447).

Decision of the Examiner: Application refused.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 7(1)(b) of Regulation (EC) No 40/94, ¹ in that the trade mark applied for has the necessary distinctive character.

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¹ - Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).