# C_2006212EN.01003201.xml

| 2.9.2006 | EN | Official Journal of the European Union | C 212/32 |
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2.9.2006

EN

Official Journal of the European Union

C 212/32

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Action brought on 22 June 2006 — Laytoncrest v OHIM — Erico (TRENTON)

(Case T-171/06)

(2006/C 212/58)

Language in which the application was lodged: Greek

Parties

Applicant: Laytoncrest Limited (London, United Kingdom) (represented by: Nikolaos K. Dontas, lawyer)

Applicant:

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

Defendant:

Other party to the proceedings before the Board of Appeal of OHIM: Erico International Corporation (represented by: Gille Hrabal Struck Neidlein Prop Roos, Düsseldorf, Germany)

Other party to the proceedings before the Board of Appeal of OHIM:

Form of order sought

| — | annulment of the decision of 26 April 2006 of the Second Board of Appeal in Case R-406/2004-2 |
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annulment of the decision of 26 April 2006 of the Second Board of Appeal in Case R-406/2004-2

| — | referral of the case for a decision on the merits to the Boards of Appeal of OHIM |
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referral of the case for a decision on the merits to the Boards of Appeal of OHIM

| — | an order that OHIM and Erico International Corporation, if it intervenes, pay the costs |
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an order that OHIM and Erico International Corporation, if it intervenes, pay the costs

Pleas in law and main arguments

Applicant for a Community trade mark: Laytoncrest

Applicant for a Community trade mark:

Community trade mark concerned: the word mark TRENTON for goods in Classes 7, 9 and 11 — Application No 2 298 438

Community trade mark concerned:

Proprietor of the mark or sign cited in the opposition proceedings: Erico International Corporation

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

Mark or sign cited in opposition: word mark LENTON for goods in Classes 6 and 7

Mark or sign cited in opposition:

Decision of the Opposition Division: opposition rejected. Opponent ordered to bear the costs.

Decision of the Board of Appeal: appeal and opposition proceedings closed, by reason of the applicant's implied withdrawal of the application for registration of the trade mark in question

Pleas in law: Infringement of Articles 44 and 61(1) of Council Regulation No 40/94 and Rule 50(1) of Commission implementing Regulation No 2868/95. The applicant claims that in the contested decision the fact that it did not take part in the opposition and appeal procedure was wrongly considered to amount to withdrawal of its application for registration of the trade mark in question, whereas it states that the Board of Appeal should, despite the applicant's failure to submit observations, have continued the procedure and reached a decision on the merits.

Pleas in law:

Infringement of the fundamental legal principle of observance of the rights of the defence and the right to a hearing in accordance with Article 73 of Regulation No 40/94 and Rule 54 of implementing Regulation No 2868/95, pursuant to which the Board of Appeal should have given the applicant an opportunity to state its position before a decision was given against it.

Infringement of Article 74(1) of Regulation No 40/79. The applicant claims that the Board of Appeal went beyond its jurisdiction and misused its powers in finding that the applicant had withdrawn by implication its entire application for registration.

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