Judgments nº T-140/08 of Court of First Instance of the European Communities, of October 14, 2009

In Case T-140/08,

Ferrero SpA, established in Alba (Italy), represented by C. Gielen and F. Jacobacci, lawyers,

applicant,

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by D. Botis, acting as Agent,

defendant,

the other party to proceedings before the Board of Appeal of OHIM being

Tirol Milch reg.Gen.mbH Innsbruck, established in Innsbruck (Austria),

ACTION brought against the decision of the Second Board of Appeal of OHIM of 30 January 2008 (Case R 682/2007-2) relating to invalidity proceedings between Ferrero SpA and Tirol Milch reg.Gen.mbH Innsbruck,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Second Chamber),

composed of I. Pelikánová, President, K. Jürimäe (Rapporteur) and S. Soldevila Fragoso, Judges,

Registrar: B. Pastor, Deputy Registrar,

having regard to the application lodged at the Registry of the Court of First Instance on 14 April 2008,

having regard to the response lodged at the Registry of the Court on 22 July 2008,

further to the hearing on 11 March 2009,

gives the following

Judgment

 Background to the dispute

1         On 8 April 1998 Tirol Milch reg.Gen.mbH Innsbruck filed an application for registration of a Community trade mark at the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), under Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)).

2         The mark for which the application for registration was made is the following figurative sign:

3         The goods for which registration was sought fall within Class 29 of the Nice Agreement concerning th...

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