# C_2010037EN.01004602.xml

| 13.2.2010 | EN | Official Journal of the European Union | C 37/46 |
| --- | --- | --- | --- |

13.2.2010

EN

Official Journal of the European Union

C 37/46

---

Action brought on 8 December 2009 — PhysioNova v OHIM — Flex Equipos de Descanso (FLEX)

(Case T-501/09)

2010/C 37/67

Language in which the application was lodged: German

Parties

Parties

Applicant: PhysioNova GmbH (Erlangen, Germany) (represented by: J. Klinik, 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: Flex Equipos de Descanso, SA (Madrid, Spain)

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

Form of order sought

Form of order sought

| — | Annul the contested decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 September 2009 in Case R 1/2009-1; |
| --- | --- |

—

Annul the contested decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 September 2009 in Case R 1/2009-1;

| — | amend the contested decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) in Case R 1/2009-1 so as to overrule the decision of the Cancellation Division of 27. October 2008 in Case 2237 C; |
| --- | --- |

—

amend the contested decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) in Case R 1/2009-1 so as to overrule the decision of the Cancellation Division of 27. October 2008 in Case 2237 C;

| — | order OHIM to pay the costs of the proceedings, including those incurred during the appeal proceedings. |
| --- | --- |

—

order OHIM to pay the costs of the proceedings, including those incurred during the appeal 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: the Community figurative mark ‘FLEX’ No 2 275 220 for goods and services in classes 6, 10, 17 and 20

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

Proprietor of the Community trade mark: Flex Equipos de Descanso, SA

Proprietor of the Community trade mark:

Applicant for the declaration of invalidity: PhysioNova GmbH

Applicant for the declaration of invalidity:

Trade mark right of applicant for the declaration: the German trade mark No 39 903 314‘PhysioFlex’ and the German trade mark No 39 644 431‘Rotoflex’

Trade mark right of applicant for the declaration:

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

Decision of the Cancellation Division:

Decision of the Board of Appeal: Dismissal of the appeal

Decision of the Board of Appeal:

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 (1), since there is a likelihood of confusion between the trade marks at issue

Pleas in law:

1

---

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

1

---