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Mozart duet in CTM clef, played in General Court Chamber
In Case T-530/10, Wolgang Klusmeier applied for the registration of Wolfgang Amadeus Mozart PREMIUM in 2005 for goods in Class 30 which was opposed by Reber Holding GmbH & Co. KG, against in particular the following goods “tea, cacao, cereal preparations, eatable bread and ices”. The opposition was brought on the basis of Article 8(1) b) CTMR on the basis of earlier German marks registered for goods and services in Classes 39 and 42 , among others “pastry and bakery shops, chocolate and confectionery, tea room, etc”.
The CTM Applicant requested for proof of genuine use of the earlier marks. Reber provided Affidavits from Reber’s administrator certifying use of the marks on packaging of Mozartkugeln (or Mozart balls, which are chocolates filled with praline and marzipan) for approximatively 20 years in Germany including during the relevant period from 2001 to 2005; a colour copy of Mozartkugeln box; extracts from Internet website showing different kinds of chocolates sold by this company from 2007 and a copy of a recipe book called Webers bildlicher Fachunterricht zu Höchstleistungen in moderner Konditorei(Weber training with pictures for the best results in modern confectionery).
The OD rejected the opposition for lack of genuine use. The BoA rejected the evidence presented for the first time because it confirmed that it did not constitute additional evidence to the first evidence filed by the Opponent, which was not sufficient to demonstrate genuine use of the earlier German marks. The General Court upheld the contested decision, finding that the Affidavit refers to the use of the word mark W. AMADEUS. MOZART but not the figurative marks; the writing on the sample box is in small characters and the style and color are perfectly matching the golden and baroque look of the frame so it will only be perceived as an ornamental element for the indication of the portrait which represents Wolgang Amaadeus Mozart. Finally, it is well established CTM case-law that the term “Mozartkugeln” is generic and descriptive for confectionery and chocolates in Germany (see case T-304/06 “Mozart”). Thus it is the term “Reber” which will be perceived as in indication of origin.
For the story of MozartKugeln, see here
Famous Mozart quotes here and the unknown fun fact of Mozart's prodigy sister herePosted by: Laetitia Lagarde @ 17.14
Tags: General court, genuine use,mozartball, mozartkulgen,
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