Action brought on 9 November 2011 — Dimian v OHIM — Bayer Design Fritz Bayer (BABY BAMBOLINA)

(Case T-581/11)

(2012/C 25/112)

Language in which the application was lodged: English

Parties

Applicant: Dimian AG (Nürnberg, Germany) (represented by: P. Pozzi and G. Ghisletti, lawyers)

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

Other party to the proceedings before the Board of Appeal: Bayer Design Fritz Bayer GmbH & Co. KG (Michelau, 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 3 August 2011 in case R 1822/2010-2; and

—	Order the defendant to bear the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The figurative mark ‘BABY BAMBOLINA’, for goods in class 28 — Community trade mark registration No 6403927

Proprietor of the Community trade mark: The other party to the proceedings before the Board of Appeal

Applicant for the declaration of invalidity of the Community trade mark: The applicant

Grounds for the application for a declaration of invalidity: The party requesting the declaration of invalidity grounded its request pursuant to Article 53(1)(c) in conjunction with Article 8(4) of Council Regulation (EC) No 207/2009, and in Article 53(1)(a) in conjunction with Article 8(1)(b) and Article 8(2)(c) of Council Regulation (EC) No 207/2009

Decision of the Cancellation Division: Rejected the request for invalidity

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 53(1)(c) and Article 8(4) and in conjunction of Council Regulation No 207/2009, to the extent that the Board of Appeal has excluded the relevance of the mentioned catalogues referring to the period 2008-2009.