Judgments nº T-24/08 of The General Court, March 04, 2010

• Resolution Date: March 04, 2010
• Issuing Organization: The General Court
• Decision Number: T-24/08

In Case T‑24/08,

Weldebräu GmbH & Co. KG, established in Plankstadt (Germany), represented by W. Göpfert, lawyer,

applicant,

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by P. Bullock, acting as Agent,

defendant,

the other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court, being

Kofola Holding a.s., established in Ostrava (Czech Republic), represented by S. Hejdová and R. Charvát, lawyers,

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 15 November 2007 (Case R 1096/2006-4), relating to opposition proceedings between Weldebräu GmbH & Co. KG and Kofola Holding a.s.,

THE GENERAL COURT (Fifth Chamber),

composed of M. Vilaras, President, M. Prek (Rapporteur) and V.M. Ciucă, Judges,

Registrar: N. Rosner, Administrator,

having regard to the application lodged at the Registry of the Court on 16 January 2008,

having regard to the response of OHIM lodged at the Registry of the Court on 13 May 2008,

having regard to the response of the intervener lodged at the Registry of the Court on 14 May 2008,

further to the hearing on 29 October 2009,

gives the following

Judgment

Background to the dispute

1 On 23 September 2003, the intervener, Kofola Holding a.s., filed an application for registration of a Community trade mark at the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), under Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)).

2 The mark in respect of which registration was sought is the three-dimensional sign corresponding to the following description: ‘a bottle of cylindrical form has a narrowed, helically formed neck and its cylindrical part is labelled “snipp”’, and reproduced below:

3 The goods in respect of which registration was sought are in Classes 30, 32 and 33 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond, in respect of each of those classes, to the following description:

– Class 30: ‘Coffee, tea, cocoa, artificial coffee, sauces, vegetable sauces, confectionery, chocolate based beverages, cocoa based beverages, coffee based beverages, tea based beverages, flavourings for beverages other than essential oils, golden syrup’;

– Class 32: ‘Non alcoholic beverages, non alcoholic fruit beverages, fruit extracts (non alcoholic), fruit nectars, fruit juice, mineral water, effervescing beverages, essences for making beverages, syrups, beers’;

– Class 33: ‘Alcoholic beverages’.

4 The Community trade mark application was published in Community Trade Marks Bulletin No 2004/033 of 16 August 2004.

5 On 16 November 2004, the applicant, Weldebräu GmbH & Co. KG, filed a notice of opposition under Article 42 of Regulation No 40/94 (now Article 41 of Regulation No 207/2009) to registration of that trade mark for the goods referred to in paragraph 3 above.

6 The opposition was based on the earlier three-dimensional Community trade mark consisting in the shape of a bottle, registered under Number 690 016 on 16 November 2000, and reproduced below.

7 The goods covered by the earlier mark fall within Classes 21, 32 and 33 and correspond, in respect of each of those classes, to the following description:

– Class 21: ‘Boxes of glass, bottles, jugs (not of precious metal)’ ;

– Class 32: ‘Beers, mineral and...