29.1.2011
EN
Official Journal of the European Union
C 30/42
Action brought on 15 November 2010 — Reber v OHIM — Klusmeier (Wolfgang Amadeus Mozart PREMIUM)
(Case T-530/10)
2011/C 30/77
Language in which the application was lodged: German
Parties
Applicant: Reber (Bad Reichenhall, Germany) (represented by: O. Spuhler and M. Geitz, laywers)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Other party to the proceedings before the Board of Appeal of OHIM: Ms Anna Klusmeier (Bielefed, Germany)
Form of order sought
—
Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 September 2010 in Case R 363/2008-4;
—
Order the defendant to pay the costs.
Pleas in law and main arguments
Applicant for a Community trade mark: Predecessor in title of Ms Anna Klusmeier.
Community trade mark concerned: Word mark ‘Wolfgang Amadeus Mozart PREMIUM’ for goods in Classes 30 and 32.
Proprietor of the mark or sign cited in the opposition proceedings: The applicant.
Mark or sign cited in opposition: German figurative marks which contain the word element ‘W. Amadeus Mozart’ for the following goods and sservices: bakers’ wares, confectionery, chocolate confectionery and sugar confectionery, catering in a café and teashop.
Decision of the Opposition Division: Rejection of the opposition.
Decision of the Board of Appeal: Dismissal of the appeal.
Pleas in law: Infringement of Article 42(2)(1) in conjunction with Article 42(3) of Regulation (EC) No 207/2009, (1) since the evidence of use put forward by the applicant is a concrete indication of the form of use of the mark cited in opposition ‘W. Amadeus Mozart’, and of Article 15(1)(2)(a) of Regulation (EC) No 207/2009, since it was proven that the mark cited in opposition is clearly used as a trade mark.
(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
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