# C_2011030EN.01004701.xml

| 29.1.2011 | EN | Official Journal of the European Union | C 30/47 |
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29.1.2011

EN

Official Journal of the European Union

C 30/47

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Action brought on 26 November 2010 — Adamowski v OHIM — Fagumit (Fagumit)

(Case T-538/10)

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2011/C 30/85

Language in which the application was lodged: German

Parties

Parties

Applicant: Ursula Adamowski (Hamburg, Germany) (represented by: D. von Schultz, 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: Fabryka Węży Gumowych i Tworzyw Sztucznych Fagumit Sp. z o.o. (Wolbrom, Poland)

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

Form of order sought

Form of order sought

| — | annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 September 2010 in Case R 1003/2009-1; |
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annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 September 2010 in Case R 1003/2009-1;

| — | dismiss the application for a declaration of invalidity of Community trade mark No 3 093 226; |
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dismiss the application for a declaration of invalidity of Community trade mark No 3 093 226;

| — | order OHIM to pay the costs incurred in removing the mark from the register, in the proceedings before the Board of Appeal, and in the present proceedings. |
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order OHIM to pay the costs incurred in removing the mark from the register, in the proceedings before the Board of Appeal, and in the present proceedings.

Pleas in law and main arguments

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Word mark ‘Fagumit’ for goods in Classes 12 and 17.

Registered Community trade mark in respect of which a declaration of invalidity has been sought:

Proprietor of the Community trade mark: Ursula Adamowski

Proprietor of the Community trade mark:

Applicant for the declaration of invalidity: Fabryka Węży Gumowych i Tworzyw Sztucznych Fagumit Sp. z o.o.

Applicant for the declaration of invalidity:

Trade mark right of applicant for the declaration: National figurative mark containing the word element ‘FAGUMIT’ for goods in Class 17.

Trade mark right of applicant for the declaration:

Decision of the Cancellation Division: Dismissal of the application for annulment.

Decision of the Cancellation Division:

Decision of the Board of Appeal: Appeal upheld and the mark was declared invalid.

Decision of the Board of Appeal:

Pleas in law: Infringement of Article 53(1)(c) of Regulation (EC) No 207/2009, (1) in conjunction with Article 8(4) thereof, since the other party to the proceedings before the Board of Appeal failed to provide legally valid evidence that the company name ‘FAGUMIT’ is actually used; infringement of Article 53(1)(b) of Regulation (EC) No 207/2009, in conjunction with Article 8(3) thereof, since the other party to the proceedings before the Board of Appeal effectively agreed to the registration of the trade mark rights associated with the name ‘FAGUMIT’, and infringement of Article 52(1)(b) of Regulation (EC) No 207/2009, since the applicant cannot be accused of acting in bad faith at the time when she filed her application for the contested Community trade mark.

Pleas in law:

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(1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).

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