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Document 62011TN0312

Case T-312/11: Action brought on 14 June 2011 — Süd-Chemie v OHIM — BYK-Cera (CERATIX)

OJ C 238, 13.8.2011, p. 32–32 (BG, ES, CS, DA, DE, ET, EL, EN, FR, IT, LV, LT, HU, MT, NL, PL, PT, RO, SK, SL, FI, SV)

13.8.2011   

EN

Official Journal of the European Union

C 238/32

Action brought on 14 June 2011 — Süd-Chemie v OHIM — BYK-Cera (CERATIX)

(Case T-312/11)

2011/C 238/53

Language in which the application was lodged: German

Parties

Applicant: Süd-Chemie AG (Munich, Germany) (represented by: W. Baron von der Osten-Sacken and A. Wenninger-Lenz, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

Other party to the proceedings before the Board of Appeal: BYK-Cera BV (Deventer, Netherlands)

Form of order sought

The applicant claims that the Court should:

—

Annul the contested decision of the Fourth Board of Appeal of OHIM of 8 April 2011 (Case R 1585/2010-4);

—

Order the Office for Harmonisation in the Internal Market to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: BYK-Cera BV

Community trade mark concerned: the word mark ‘CERATIX’ for goods in Class 1 — application No 6 358 832

Proprietor of the mark or sign cited in the opposition proceedings: the applicant

Mark or sign cited in opposition: the national word mark ‘CERATOFIX’ for goods in Class 1

Decision of the Opposition Division: the opposition was upheld

Decision of the Board of Appeal: the Opposition Division’s decision was annulled and the opposition was rejected

Pleas in law: Infringement of Article 15 and Article 42(2) and (3) of Regulation No 207/2009 as the defendant:

—

Erred in reducing the evidential value of the documents submitted by the applicant with the general reasoning that they are connected with the applicant itself;

—

Did not take account of promotional measures as ‘genuine use’;

—

Did not include all the relevant circumstances in assessing whether the use of the trade mark was genuine and;

—

Did not examine the evidence of use provided as a whole.
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