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Case T-372/08: Action brought on 10 September 2008 — Murnauer Markenvertrieb v OHIM — Fitne Gesundheit und Wellness (Notfall Bonbons)
ECLI:EU:UNKNOWN:62008TN0372
62008TN0372
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6.12.2008
Official Journal of the European Union
C 313/34
(Case T-372/08)
(2008/C 313/62)
Language in which the application was lodged: German
Parties
Applicant: Murnauer Markenvertrieb GmbH (Trebur, Germany) (represented by: H. Daniel and O.I. Haleen, lawyers)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Other party to the proceedings before the Board of Appeal of OHIM: Fitne Gesundheits- und Wellness GmbH (Salzhemmendorf, Germany)
Form of order sought
—Annul the decision of the Board of Appeal of OHIM of 10 July 2008 in Case R 909/2007-1;
—order the defendant to pay the costs.
Pleas in law and main arguments
Registered Community trade mark in respect of which a declaration of invalidity has been sought: Word mark ‘Notfall Bonbons’ for goods in classes 5 and 30 (Community trade mark No 3 563 251)
Proprietor of the Community trade mark: The applicant
Applicant for the declaration of invalidity: Fitne Gesundheits- und Wellness GmbH
Decision of the Cancellation Division: Rejection of the application for a declaration of invalidity of the trade mark concerned.
Decision of the Board of Appeal: Annulment of the decision of the Cancellation Division and granting of the application for a declaration of invalidity of the trade mark concerned.
Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation No 40/94, since the trade mark ‘Notfall Bonbons’ is not descriptive of the protected goods, nor does it lack the requisite distinctive character.