# C_2009205EN.01004502.xml

| 29.8.2009 | EN | Official Journal of the European Union | C 205/45 |
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29.8.2009

EN

Official Journal of the European Union

C 205/45

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Action brought on 6 July 2009 — Defense Technology v OHIM — DEF-TEC Defense Technology (FIRST DEFENSE AEROSOL PEPPER PROJECTOR)

(Case T-262/09)

2009/C 205/83

Language in which the application was lodged: English

Parties

Parties

Applicants: Defense Technology Corporation of America (Jacksonville, United States) (represented by: R. Kunze, lawyer and Solicitor)

Applicants:

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

Defendant:

Other party to the proceedings before the Board of Appeal: DEF-TEC Defense Technology GmbH (Frankfurt/Main, Germany)

Other party to the proceedings before the Board of Appeal:

Form of order sought

Form of order sought

| — | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 May 2009 in case R 493/2002-4 (II); and |
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Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 May 2009 in case R 493/2002-4 (II); and

| — | Order the defendant to pay the costs. |
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Order the defendant to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

Applicant for the Community trade mark: The other party to the proceedings before the Board of Appeal

Applicant for the Community trade mark:

Community trade mark concerned: The figurative mark ‘FIRST DEFENSE AEROSOL PEPPER PROJECTOR’, for goods in classes 5, 8 and 13 — application No 643 668

Community trade mark concerned:

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

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

Mark or sign cited: United States trade mark registration for the word mark ‘FIRST DEFENSE’ for goods in class 13; Two United States trade mark registrations of figurative marks for goods in class 13; An earlier well-known mark in Belgium, Germany and France ‘FIRST DEFENSE’; An earlier well-known mark in Belgium, Germany and France ‘FIRST DEFENSE AND DESIGN’; An earlier non-registered work mark ‘FIRST DEFENSE’ protected in Germany and France; An earlier non-registered mark in Belgium, Germany and France ‘FIRST DEFENSE AND DESIGN’; A trade name ‘FIRST DEFENSE’, protected in Germany

Mark or sign cited:

Decision of the Opposition Division: Partially upheld the opposition

Decision of the Opposition Division:

Decision of the Board of Appeal: Annulled the decision of the Opposition Division and rejected the opposition

Decision of the Board of Appeal:

Pleas in law: Infringement of Article 8(3) of Council Regulation 207/2009 as the Board of Appeal did not properly apply the said provision and, moreover, wrongly rendered a decision based on a flawed understanding of the facts presented; Infringement of Articles 65, 75 and 76 of Council Regulation 207/2009 as the Board of Appeal failed to take the necessary measures to comply with the judgment of the Court of First Instance of 6 September 2006 in case T-6/05 DEF-TEC Defense Technology v OHIM — Defense Technology (FIRST DEFENSE AEROSOL PEPPER PROJECTOR)

Pleas in law:

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