This document is an excerpt from the EUR-Lex website
Document 62009TN0434
Case T-434/09: Action brought on 26 October 2009 — Centrotherm Systemtechnik v OHIM — centrotherm Clean Solutions (CENTROTHERM)
Case T-434/09: Action brought on 26 October 2009 — Centrotherm Systemtechnik v OHIM — centrotherm Clean Solutions (CENTROTHERM)
Case T-434/09: Action brought on 26 October 2009 — Centrotherm Systemtechnik v OHIM — centrotherm Clean Solutions (CENTROTHERM)
OJ C 312, 19.12.2009, p. 40–41
(BG, ES, CS, DA, DE, ET, EL, EN, FR, IT, LV, LT, HU, MT, NL, PL, PT, RO, SK, SL, FI, SV)
19.12.2009 |
EN |
Official Journal of the European Union |
C 312/40 |
Action brought on 26 October 2009 — Centrotherm Systemtechnik v OHIM — centrotherm Clean Solutions (CENTROTHERM)
(Case T-434/09)
2009/C 312/67
Language in which the application was lodged: German
Parties
Applicant: Centrotherm Systemtechnik GmbH (Brilon, Germany) (represented by: J. Albrecht, lawyer)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Other party to the proceedings before the Board of Appeal of OHIM: centrotherm Clean Solutions GmbH & Co KG (Blaubeuren, Germany)
Form of order sought
— |
Annul the decision of the Fourth Board of Appeal of 25 August in Case R 6/2008-4, in so far as the application for a declaration of revocation was upheld; |
— |
order the applicant to pay the costs |
— |
order the possible intervener to pay the costs of the intervention. |
Pleas in law and main arguments
Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark CENTROTHERM for goods and services in Classes 11, 17, 19 and 42 (Community trade mark No 1 301 019)
Proprietor of the Community trade mark: The applicant
Applicant for the declaration of invalidity: centrotherm Clean Solutions GmbH & Co KG
Decision of the Cancellation Division: Revocation of the Community trade mark
Decision of the Board of Appeal: Annulment in part of the decision of the Cancellation Division and partial revocation of the Community trade mark
Pleas in law: Infringement of Article 57(5) in conjunction with Article 51(1) and (2) of Regulation (EC) No 207/2009 (1), as the defendant did not adequately assess proof of use which was submitted within the time-limit;
Infringement of the duty to examine the facts of its own motion;
Infringement of Article 76(1) and (2) and Article 57(1) of Regulation No 207/2009 and of Rule 40(5) of Regulation (EC) No 2868/95 (2), since the defendant did not take into consideration the proof of use submitted with the grounds of appeal;
Incorrect exercise of discretion, since the evidence submitted, even in the event that it was submitted late, is to be taken into consideration;
In the alternative, inapplicability of Rule 40(5) of Regulation No 2868/95 under Article 241 EC, since this rule infringes Article 76(1) and Article 57(1) in conjunction with Article 51(1) and Article 162(1) of Regulation No 207/2009, Article 202 EC and general principles of Community law, in particular the legal principle of proportionality, the principle of property rights and the right to a fair trial.
(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
(2) Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).