# C_2011113EN.01001501.xml

| 9.4.2011 | EN | Official Journal of the European Union | C 113/15 |
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9.4.2011

EN

Official Journal of the European Union

C 113/15

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Action brought on 25 January 2011 — Kastenholz v OHIM — qwatchme (watch dials)

(Case T-68/11)

2011/C 113/30

Language in which the application was lodged: German

Parties

Parties

Applicant: Erich Kastenholz (Troisdorf, Germany) (represented by: L. Acker, 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: qwatchme A/S (Vejle East, Denmark)

Other party to the proceedings before the Board of Appeal:

Form of order sought

Form of order sought

| — | Annul the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 2 November 2010 in Case R 1086/2009-3; |
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Annul the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 2 November 2010 in Case R 1086/2009-3;

| — | refer the case back to the Cancellation Division for consideration of copyright protection relied on by the applicant, which was not adequately analysed by that Division; |
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refer the case back to the Cancellation Division for consideration of copyright protection relied on by the applicant, which was not adequately analysed by that Division;

| — | order OHIM to pay the costs. |
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order OHIM to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

Registered Community design in respect of which a declaration of invalidity has been sought: Community design No 602636-0003, which shows a watch dial.

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

Proprietor of the Community design: qwatchme A/S.

Proprietor of the Community design:

Applicant for the declaration of invalidity of the Community trade mark: the applicant.

Applicant for the declaration of invalidity of the Community trade mark:

Grounds for the application for a declaration of invalidity: Breach of Article 25(1)(b), together with Article 4 and Article 25(1)(f) of Regulation (EC) No 6/2002, (1) for lack of novelty and infringement of Paul Heimbach’s copyright in an artistic work.

Grounds for the application for a declaration of invalidity:

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Decision of the Cancellation Division: Rejection of the application for a declaration of invalidity.

Decision of the Cancellation Division:

Decision of the Board of Appeal: Rejection of the appeal.

Decision of the Board of Appeal:

Pleas in law: Breach of Article 25(1) and Article 5 and Article 6 of Regulation (EC) No 6/2002, as the Board of Appeal did not make a clear distinction between the features of ‘novelty’ and ‘individual character’, as well as breach of Article 25(1)(f) of Regulation (EC) No 6/2002, as neither the Board of Appeal nor the Cancellation Division of OHIM had duly analysed whether the Community design constitutes a prohibited use of a work which is protected under German copyright legislation.

Pleas in law:

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(1)  Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1).

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