C_2012243EN.01002301.xml

11.8.2012

Official Journal of the European Union

C 243/23

Action brought on 29 May 2012 — CEDC International v OHIM — Underberg (Shape of a blade of grass in a bottle)

(Case T-235/12)

2012/C 243/41

Language in which the application was lodged: English

Parties

Applicant: CEDC International sp. z o.o. (Warsaw, Poland) (represented by: M. Siciarek, lawyer)

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

Other party to the proceedings before the Board of Appeal: Underberg AG (Dietlikon, Suisse)

Form of order sought

—	Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 26 March 2012 in case R 2506/2010-4;

—	Order OHIM to bear the costs of the proceedings at hand.

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 with the description ‘the object of the trade mark is a greeny-brown blade of grass in a bottle, the length of the blade of grass is approximately three-quarters the height of the bottle’, for goods in class 33 — Community trade mark application No 33266

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

Mark or sign cited in opposition: French trade mark registration No 95588457 of the three-dimensional mark representing a bottle with a strand of grass for goods in class 33; German trade mark registration No 39848553; Polish trade mark registration No 62018; Polish trade mark registration No 62081 for goods in class 33; Polish trade mark registration No 85811 for goods in class 33; Japanese trade mark registration No 2092826 for goods in class 28; French trade mark registration No 98746752 of the three-dimensional mark representing a bottle with a strand of grass for goods in class 33; Non-registered trade mark used in the course of trade in Germany in connection with ‘vodka’

Decision of the Opposition Division: Rejected the opposition in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law:

—	Infringement of the principle of legality;

—	Infringement of Article 15(1)(a) of Council Regulation No 207/2009 and Rule 22(3) of Commission Regulation No 2868/95 and consequently also Articles 8(1)(a), 42(2) and (3) of Council Regulation No 207/2009.