12.4.2008

Official Journal of the European Union

C 92/31

(Case T-28/08)

(2008/C 92/64)

Language in which the application was lodged: English

Parties

Applicant: Mars, Inc. (McLean, United States) (represented by: A. Bryson, Barrister, and G. Mills, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Ludwig Schokolade GmbH & Co. KG (Bergisch Gladbach, 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 23 October 2007;

—order that OHIM bears its own and pays the applicant's costs.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: A three-dimensional mark representing a chocolate bar for goods in classes 5, 29 and 30 — Community trade mark No 818 864

Proprietor of the Community trade mark: The applicant

Party requesting the declaration of invalidity of the Community trade mark: Ludwig Schokolade GmbH & Co. KG

Decision of the Cancellation Division: Rejection of the request for a declaration of invalidity

Decision of the Board of Appeal: Annulment of the Cancellation Division's decision and declaration of invalidity of the Community trade mark

Pleas in law: Infringement of Articles 7(1)(b) and (3), 51(2), 73 and 74(1) of Council Regulation No 40/94, as:

—the Board of Appeal ought to have concluded that the shape in issue was a significant departure from the norms and customs of the relevant sector;

—the Board of Appeal required proof that the mark had acquired distinctiveness in every relevant Member State on a country by country basis and not based on whether it had acquired distinctiveness in a substantial part of the Community market for chocolate bars;

—the Board of Appeal relied, in the contested decision, on a point which had not previously been raised either by the Office, or by Ludwig Schokolade.