Action brought on 16 June 2011 — Heede v OHIM (Matrix-Energetics)

(Case T-313/11)

2011/C 238/54

Language of the case: German

Parties

Applicant: Günter Heede (Walldorf-Baden, Germany) (represented by R. Utz, lawyer)

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

Form of order sought

The applicant claims that the Court should:

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘Matrix-Energetics’ for services in Classes 35, 41 and 44 — application No 8 339 798

Decision of the Examiner: Rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation No 207/2009 as the descriptive character of the mark applied for cannot be determined and the mark applied for has the necessary distinctive character; the Board of Appeal erred in making print-outs from the internet, which dated from after the date of filing of the application for registration, the subject-matter of its decision; and furthermore isolated, illegal instances of use of an originally distinctive (fanciful) description on the part of third parties, which commenced after the date of filing, cannot have a negative influence on the registrability of a Community trade mark.