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Case T-140/08: Action brought on 14 April 2008 — Ferrero v OHIM — Tirol Milch (TiMi KINDERJOGHURT)
ECLI:EU:UNKNOWN:62008TN0140
62008TN0140
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Valentina R., lawyer
7.6.2008
EN
Official Journal of the European Union
C 142/35
(Case T-140/08)
(2008/C 142/63)
Language in which the application was lodged: English
Parties
Applicant: Ferrero SpA (Alba, Italy) (represented by: C. Gielen, lawyer, and F. Jacobacci, lawyer)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Other party to the proceedings before the Board of Appeal: Tirol Milch rGmbH (Innsbruck, Austria)
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 30 January 2008 in case R 628/2007-2; and
—order OHIM to pay the costs.
Pleas in law and main arguments
Registered Community trade mark subject of the application for a declaration of invalidity: A word mark consisting of the words ‘TiMi KINDERJOGHURT’ for goods in class 29 — application No 792 978
Proprietor of the Community trade mark: Tirol Milch reg. Gen. mbH
Party requesting the declaration of invalidity of the Community trade mark: The applicant
Decision of the Cancellation Division: Invalidity of the challenged trade mark
Decision of the Board of Appeal: Annulment of the Cancellation Division's decision and dismissal of the request for declaration of invalidity
Pleas in law: The Second Board of Appeal erred in establishing that the previous final decisions between the same parties and concerning the same trade mark are binding in the subsequent action for invalidity before the Cancellation Division and the Board of Appeal; Infringement of Article 8(1)(b) and 8(5) of Council Regulation No 40/94 as the challenged trade mark is similar to an earlier trade mark.