Action brought on 22 May 2009 - Rügen Fisch v OHIM - Schwaaner Fischwaren (SCOMBER MIX)

(Case T-201/09)

Language in which the application was lodged: German

Parties

Applicant: Rügen Fisch AG (Sassnitz, Germany) (represented by: O. Spuhler and M. Geiz, 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: Schwaaner Fischwaren GmbH (Schwaandorf, Germany)

Form of order sought

Annul the decision of the Fourth Board of Appeal of OHIM of 20 March 2009 in Case R 230/2007-4;

order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark 'SCOMBER MIX' for goods and services in classes 29 and 25 (Community trade mark No 3 227 031)

Proprietor of the Community trade mark: the applicant

Applicant for the declaration of invalidity: Schwaaner Fischwaren GmbH

Decision of the Cancellation Division: dismissal of the application for a declaration of invalidity

Decision of the Board of Appeal: annulment of the decision of the Cancellation Division and partial declaration of invalidity of the Community trade mark

Pleas in law: Infringement of Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation (EC) No 207/2009¹) on the grounds that the Community trade mark 'SCOMBER MIX' is not purely descriptive.

____________

¹ - Council Regulation (EC) No 207/2009 as of 26 February 2009 on the Community trade mark (OJ 2009 L78, p.1)