Action brought on 27 January 2009 — Hipp & Co v OHIM — Nestlé (Bebio)

(Case T-41/09)

(2009/C 82/56)

Language in which the application was lodged: English

Parties

Applicant: Hipp & Co (Sachseln, Switzerland) (represented by: A. Bognár and M. Kinkeldey, lawyers)

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

Other party to the proceedings before the Board of Appeal: Sociéte des Produits Nestlé, S.A. (Vevey, Switzerland)

Form of order sought

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘Bebio’, for goods in classes 5, 29, 30 and 32

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

Mark or sign cited: International trade mark registration No 187 436 of the word mark ‘BEBA’ for goods in classes 5, 29 and 30; Community trade mark registration No 3 043 387 of the word mark ‘BEBA’ for goods in classes 5, 29 and 30

Decision of the Opposition Division: Partially upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 40/94 as the Board of Appeal wrongly assessed that there was a likelihood of confusion between the trade marks concerned