# C_2010037EN.01004201.xml

| 13.2.2010 | EN | Official Journal of the European Union | C 37/42 |
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13.2.2010

EN

Official Journal of the European Union

C 37/42

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Action brought on 4 December 2009 — Jager & Polacek v OHIM- RT Mediasolutions (REDTUBE)

(Case T-488/09)

2010/C 37/59

Language in which the application was lodged: German

Parties

Parties

Applicant: Jager & Polacek GmbH (Vienna, Austria) (represented by: A. Renck, V. von Bomhard, T. Dolde, lawyers)

Applicant:

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

Defendant:

Other party/parties to the proceedings before the Board of Appeal of OHIM: RT Mediasolutions s.r.o. (Brno, Czech Republic)

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

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) No R 442/2009-4 of 29 September 2009; |
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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) No R 442/2009-4 of 29 September 2009;

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

Pleas in law and main arguments

Pleas in law and main arguments

Applicant for a Community trade mark: RT Mediasolutions s.r.o

Applicant for a Community trade mark:

Community trade mark concerned: the word mark ‘REDTUBE’ for goods and services in classes 9, 38 and 41 (Application No 6 096 309)

Community trade mark concerned:

Proprietor of the mark or sign cited in the opposition proceedings: Jager & Polacek GmbH

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

Mark or sign cited in opposition: a non-registered trade mark ‘Redtube’

Mark or sign cited in opposition:

Decision of the Opposition Division: The notice of opposition is deemed not to have been entered

Decision of the Opposition Division:

Decision of the Board of Appeal: Rejection of the appeal

Decision of the Board of Appeal:

Pleas in law:

| — | Infringement of Article 8(2) of Regulation (EC) No 216/96 (1) in conjunction with Article 63(2) of Regulation (EC) No 207/2009 (2), since the applicant was not given an opportunity to submit a reply; |
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Infringement of Article 8(2) of Regulation (EC) No 216/96 (1) in conjunction with Article 63(2) of Regulation (EC) No 207/2009 (2), since the applicant was not given an opportunity to submit a reply;

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| — | Infringement of Article 80(1) and (2) of Regulation No 207/2009, since the decision on the admissibility of the opposition had not been legally annulled. |
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Infringement of Article 80(1) and (2) of Regulation No 207/2009, since the decision on the admissibility of the opposition had not been legally annulled.

| — | Infringement of Article 83 of Regulation No 207/2009, and more particularly of the principle of legitimate expectations, in conjunction with Article 41(3) of the same Regulation, Rule 17(1) of Regulation (EC) No 2868/95 (3) und Article 8(3)(a) and (b) of Regulation (EC) No 2869/95 (4), since the applicant entertained reasonable expectations that the delay in lodging the opposition fee was remedied by the paymentwithin the prescribed time limit of the additional payment. |
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Infringement of Article 83 of Regulation No 207/2009, and more particularly of the principle of legitimate expectations, in conjunction with Article 41(3) of the same Regulation, Rule 17(1) of Regulation (EC) No 2868/95 (3) und Article 8(3)(a) and (b) of Regulation (EC) No 2869/95 (4), since the applicant entertained reasonable expectations that the delay in lodging the opposition fee was remedied by the paymentwithin the prescribed time limit of the additional payment.

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(1)  Commission Regulation (EC) No 216/96 of 5 February 1996 laying down the rules of procedure of the Boards of Appeal of OHIM (OJ 1996 L 28, p. 11),

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(2)  Commission Regulation (EC) No 2869/95 of 13 December 1995 on the fees payable to the Office for Harmonization in the Internal Market (Trade Marks and Designs) (OJ 1995 L 303, p. 33)

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(3)  Council Regulation (EC) No 207/2009 of February 2009 on the Community trade mark (OJ L 78 of 24.3.2009, p.1)

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(4)  Commission Regulation (EC) No 2869/95 of 13 December 1995 on the fees payable to the Office for Harmonization in the Internal Market (Trade Marks and Designs) (OJ 1995 L 303, p. 33)

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