27.8.2011

EN

Official Journal of the European Union

C 252/44

(Case T-357/11)

2011/C 252/95

Language in which the application was lodged: Spanish

Parties

Applicant: Bimbo (Barcelona, Spain) (represented by: J. Carbonell Callicó, lawyer)

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

Other party to the proceedings before the Board of Appeal: Grupo Bimbo, SAB de CV (Mexico City, Mexico)

Form of order sought

—Vary the decision of the First Board of Appeal of 14 April 2011, in accordance with Article 65(3) of the CTMR, on account of infringement of Article 8(5) CTMR, and refuse registration of the trade mark concerned — figurative mark 5.025.598 ‘GRUPO BIMBO’ — in its entirety for all the goods and services applied for;

—In the alternative, and only in the event that the previous claim is rejected, annul the decision of the First Board of Appeal of 14 April 2011 on account of infringement of Article 8(5) CTMR;

—Order the defendants to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Grupo Bimbo, S.A.B de C.V.

Community trade mark concerned: Figurative mark including the word element ‘GRUPO BIMBO’ (application No 5.025.598) for goods and services in Classes 5, 29, 30, 31, 32, 35 and 43.

Proprietor of the mark or sign cited in the opposition proceedings: The applicant.

Mark or sign cited in opposition: Spanish word mark ‘BIMBO’ (No 2.689.432) for goods in Classes 5, 29 and 30, and various Spanish figurative marks (No 464.785, No 2.244.562, No 2.244.563 and No 2.255.097) which include the word element ‘BIMBO’, for goods and services in Classes 29, 30, 31, 32, 35 and 42.

Decision of the Opposition Division: Opposition upheld.

Decision of the Board of Appeal: Decision under appeal annulled in part.

Pleas in law: Incorrect interpretation and application of Article 8(5) of Regulation No 207/2009 on the Community trade mark, since, following a finding that the BIMBO trade marks cited in opposition are trade marks with a reputation in the Spanish market and that the mark applied for ‘GRUPO BIMBO’ is virtually identical to the opposing marks, the application for that trade mark was granted in part, on the basis that it had not been proved that unfair advantage was taken of the repute or distinctive character of the opposing marks or that there was any risk to that repute or distinctive character.