C_2008064EN.01005701.xml

8.3.2008

Official Journal of the European Union

C 64/57

Action brought on 2 January 2008 — Piccoli v OHIM (Representation of a shell)

(Case T-8/08)

(2008/C 64/91)

Language of the case: Italian

Parties

Applicant: G.M. Piccoli Srl (Alzano Lombardo, Italy) (represented by S. Giudici, lawyer)

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

Form of order sought

The applicant claims that the Court should:

—

Annul or vary the decision of the First Board of Appeal of 28 September 2007, notified on 23 October 2007, to allow the registration of Community three-dimensional trade mark No 4522892 consisting in the stylised shape of a (scallop) shell, also to distinguish ‘brioches, brioches filled with creams or custards, jams, chocolate or honey’;

—	Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Three-dimensional mark representing a shell from four different perspectives (Registration Application No 4.522.892 for goods in Class 30).

Decision of the Examiner: Rejection of the application for registration in respect of ‘preparations made from cereals, pastry, confectionery and ices’.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Articles 4 and 7(1)(e) of Regulation (EC) No 40/94 on the Community trade mark, as well as misconstruction of a number of provisions of Directive 89/104/EEC to approximate the laws of the Member States relating to trade marks. It is asserted, in that regard, that both Article 2 of Directive 89/104/EEC and Article 4 of Regulation (EC) No 40/94 acknowledge, expressly and unambiguously, the intrinsic distinctiveness, not only of the packaging of goods, but also of the very shape of those goods.