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Document 62011TN0178

    Case T-178/11: Action brought on 18 March 2011 — Voss of Norway v OHIM — Nordic Spirit (Three-dimensional ‘bottle’ )

    OJ C 145, 14.5.2011, p. 36–37 (BG, ES, CS, DA, DE, ET, EL, EN, FR, IT, LV, LT, HU, MT, NL, PL, PT, RO, SK, SL, FI, SV)

    Date of document:
    18/03/2011
    Date lodged:
    18/03/2011
    Author:
    General Court
    Form:
    Judicial information
    Authentic language:
    English
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    Instruments cited in case law:
    Link

    14.5.2011   

    EN

    Official Journal of the European Union

    C 145/36

    Action brought on 18 March 2011 — Voss of Norway v OHIM — Nordic Spirit (Three-dimensional ‘bottle’)

    (Case T-178/11)

    2011/C 145/61

    Language in which the application was lodged: English

    Parties

    Applicant: Voss of Norway ASA (Oslo, Norway) (represented by: F. Jacobacci and B. La Tella, lawyers)

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

    Other party to the proceedings before the Board of Appeal: Nordic Spirit AB (pubI) (Stockholm, Sweden)

    Form of order sought

    —

    Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 January 2011 in case R 785/2010-1; and

    —

    Order the defendant to pay the costs of the proceedings.

    Pleas in law and main arguments

    Registered Community trade mark in respect of which a declaration of invalidity has been sought: The three-dimensional mark representing a ‘bottle’, for goods in classes 32 and 33 — Community trade mark registration No 3156163

    Proprietor of the Community trade mark: The applicant

    Applicant for the declaration of invalidity of the Community trade mark: The other party to the proceedings before the Board of Appeal

    Grounds for the application for a declaration of invalidity: The party requesting the declaration of invalidity grounded its request on absolute grounds for refusal pursuant to Article 52(1)(a) in conjunction with Article 7 of Council Regulation (EC) No 207/2009, and that the proprietor of the Community trade mark acted in bad faith when filing the application pursuant to Article 52(1)(b) of Council Regulation (EC) No 207/2009.

    Decision of the Cancellation Division: Rejected the application for invalidity

    Decision of the Board of Appeal: Declared the Community trade mark registration invalid

    Pleas in law: Infringement of Articles 75, 99 and 7(1)(b) of Council Regulation No 207/2009, as well as infringement of Rule 37(b)(iv) of Commission Regulation (EC) No 2868/95, as the Board of Appeal erred (i) in its motivation by basing it on a new requirement for establishing validity of three-dimensional trademarks, on which the applicant did not had the opportunity to present its comments; (ii) in shifting the onus of proof in violation of fair trials principles; (iii) in misinterpreting and misapplying Article 7(1)(b) of the CTMR; and (iv) by seriously distorting the facts in order to arrive at the wrong conclusion.

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