Action brought on 22 June 2010 — mPAY24 GmbH v OHIM — ULTRA d.o.o. Proizvodnja elektronskih naprav (MPAY 24)

(Case T-275/10)

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2010/C 234/79

Language in which the application was lodged: English

Parties

Applicant: mPAY24 GmbH (Vienna, Austria) (represented by: Dr. H. G. Zeiner and S. Di Natale, lawyers)

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

Other party to the proceedings before the Board of Appeal: ULTRA d.o.o. Proizvodnja elektronskih naprav (Zagorje ob Savi, Slovenia)

Form of order sought

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The word mark ‘MPAY24’ for goods and services in classes 9, 16, 35, 36 and 38 — Community trade mark application No 2601656

Proprietor of the Community trade mark cited in the invalidity proceedings: The applicant

Party requesting the declaration of invalidity of the Community trade mark: The other party to the proceedings before the Board of Appeal

Trade mark right of the party requesting the declaration of invalidity: The party requesting the declaration of invalidity relied its request on absolute grounds for refusal pursuant to Articles 52(1)(a), 7(1)(b), 7(1)(c) and 7(2) of Council Regulation (EC) No 207/2009

Decision of the Cancellation Division: Rejected the request for a declaration of invalidity

Decision of the Board of Appeal: Upheld the appeal and, as a result, annulled the decision of the Cancellation Division and declared the invalidity of the registered Community trade mark

Pleas in law: The applicant advances two pleas in law in support of its application.

On the basis of its first plea, the applicant claims that the contested decision infringes Articles 7(1)(b) and 7(1)(c) of Council Regulation (EC) No 207/2009, as the Board of Appeal erred in concluding that the provisions of these articles are applicable to the contested Community trade mark. In particular, the First Board of Appeal: (i) erred in overturning the previous decision of the Second Board of Appeal of 21 April 2004 which concerns the same matter and which is based on the same grounds; and (ii) erroneously found that the contested Community trade mark is descriptive for the goods and services in question as well as devoid of any distinctive character.

By its second plea, the applicant considers that the contested decision does not comply with the provisions of Council Regulation (EC) No 207/2009, as the Board of Appeal erred in annulling the contested Community trade mark for all the goods and services registered in classes 9, 16, 35, 36 and 38 only on the basis of questionable and not corroborated assumptions.