27.4.2013

Official Journal of the European Union

C 123/21

(Case T-128/13)

2013/C 123/35

Language in which the application was lodged: English

Parties

Applicant: Vicente Gandia Pla, SA (Chiva, Spain) (represented by: I. Temiño Ceniceros, lawyer)

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

Other party to the proceedings before the Board of Appeal: Tesco Stores Ltd (Cheshunt, United Kingdom)

Form of order sought

The applicant claims/claim that the Court should:

—Declare admissible the here concerned appeal and enclosures;

—Annul the Boards of Appeal Decision;

—Condemn the OHIM and the intervener to bear the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘MARQUES DE CHIVÉ’ for goods in classes 29, 32 and 33 — Community trade mark registration No 9 571 415

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 in opposition: United Kingdom registration No 1 520 720 of the word mark ‘MARQUES DE CHIVE’ for goods in class 33

Decision of the Opposition Division: Rejected the opposition directed at the application for the goods in class 33 for lack of genuine use

Decision of the Board of Appeal: Annulled the contested decision and rejected the application for the goods in class 33

Pleas in law: Infringement of Articles 42(2) and (3) of Council Regulation No 207/2009.