Action brought on 27 November 2013 – Bimbo v OHIM – Cafe' do Brasil (Caffè KIMBO)

(Case T-637/13)

Language in which the application was lodged: English

Parties

Applicant: Bimbo, SA (Barcelona, Spain) (represented by: N. Fernández Fernández-Pacheco, lawyer)

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

Other party to the proceedings before the Board of Appeal: Cafe' do Brasil SpA (Melito di Napoli, Italy)

Form of order sought

The applicant claims that the Court should:

Annul partially the decision of the Fourth Board of Appeal of the Office for Harmonization in the Internal Market (Trade Marks and Designs) of 25 September 2013 given in Case R 1434/2012-4;

Order the other party, should it intervene, to bear the costs of proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark containing the verbal elements “Caffè KIMBO” in black, red, gold, white, light sky blue, dark sky blue, yellow and light green for goods in Classes 30, 32, and 43 – Community trade mark application No 4 273 884

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

Mark or sign cited in opposition: The Spanish trade mark registration No 291 655 for the word mark “BIMBO” for goods in Class 30 and earlier well-known Spanish and Portuguese word mark “BIMBO”

Decision of the Opposition Division: Upheld the opposition in part

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1), (2) and (5) CTMR