Action brought on 16 January 2008 — Weldebräu v OHIM — Kofola Holding (Shape of a bottle)

(Case T-24/08)

(2008/C 64/100)

Language in which the application was lodged: German

Parties

Applicant: Weldebräu GmbH & Co. KG (Plankstadt, Germany) (represented by W. Göpfert, lawyer)

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

Other party to the proceedings before the Board of Appeal: Kofola Holding a.s. (Ostrava, Czech Republic)

Form of order sought

Pleas in law and main arguments

Applicant for a Community trade mark: Kofola Holding a.s.

Community trade mark concerned: the three-dimensional mark ‘shape of a bottle’ for goods in Classes 30, 32 and 33 (Application No 3 367 539)

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

Mark or sign cited in opposition: the three-dimensional mark ‘shape of a bottle’ for goods in Classes 21, 32 and 33 (Community trade mark No 690 016)

Decision of the Opposition Division: Rejection of the opposition

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 (1), as there is a likelihood of confusion between the marks in opposition.

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