C_2008092EN.01003101.xml

12.4.2008

Official Journal of the European Union

C 92/31

Action brought on 14 January 2008 — Mars v OHIM — Ludwig Schokolade (three dimensional mark representing a chocolate bar)

(Case T-28/08)

(2008/C 92/64)

Language in which the application was lodged: English

Parties

Applicant: Mars, Inc. (McLean, United States) (represented by: A. Bryson, Barrister, and G. Mills, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Ludwig Schokolade GmbH & Co. KG (Bergisch Gladbach, Germany)

Form of order sought

—	Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 October 2007;

—	order that OHIM bears its own and pays the applicant's costs.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: A three-dimensional mark representing a chocolate bar for goods in classes 5, 29 and 30 — Community trade mark No 818 864

Proprietor of the Community trade mark: The applicant

Party requesting the declaration of invalidity of the Community trade mark: Ludwig Schokolade GmbH & Co. KG

Decision of the Cancellation Division: Rejection of the request for a declaration of invalidity

Decision of the Board of Appeal: Annulment of the Cancellation Division's decision and declaration of invalidity of the Community trade mark

Pleas in law: Infringement of Articles 7(1)(b) and (3), 51(2), 73 and 74(1) of Council Regulation No 40/94, as:

—	the Board of Appeal ought to have concluded that the shape in issue was a significant departure from the norms and customs of the relevant sector;

—	the Board of Appeal required proof that the mark had acquired distinctiveness in every relevant Member State on a country by country basis and not based on whether it had acquired distinctiveness in a substantial part of the Community market for chocolate bars;

—	the Board of Appeal relied, in the contested decision, on a point which had not previously been raised either by the Office, or by Ludwig Schokolade.