# C_2009267EN.01007601.xml

| 7.11.2009 | EN | Official Journal of the European Union | C 267/76 |
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7.11.2009

EN

Official Journal of the European Union

C 267/76

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Action brought on 3 September 2009 — PAGO International v OHIM — Tirol Milch (Pago)

(Case T-349/09)

2009/C 267/136

Language in which the application was lodged: German

Parties

Parties

Applicant: PAGO International GmbH (Klagenfurt, Austria) (represented by: C. Hauer and C. Schumacher, lawyers)

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: Tirol Milch reg.Gen.mbH Innsbruck (Innsbruck, Austria)

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

Form of order sought

Form of order sought

| — | Amend the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 July 2009 concerning cancellation proceedings No 2025 C (Community trade mark No 915 488) so as to dismiss the appeal by Tirol Milch registrierte Genossenschaft mit beschränkter Haftung against the decision of the Cancellation Division of 4 August 2008, and order Tirol Milch registrierte Genossenschaft mit beschränkter Haftung to pay the costs of the appeal proceedings; |
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Amend the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 July 2009 concerning cancellation proceedings No 2025 C (Community trade mark No 915 488) so as to dismiss the appeal by Tirol Milch registrierte Genossenschaft mit beschränkter Haftung against the decision of the Cancellation Division of 4 August 2008, and order Tirol Milch registrierte Genossenschaft mit beschränkter Haftung to pay the costs of the appeal proceedings;

| — | in the alternative, annul the decision of the Fourth Board of Appeal and refer the case back to the Office for Harmonisation in the Internal Market (Trade Marks and Designs) for a fresh decision. |
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in the alternative, annul the decision of the Fourth Board of Appeal and refer the case back to the Office for Harmonisation in the Internal Market (Trade Marks and Designs) for a fresh decision.

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 coloured figurative mark ‘Pago’ for goods in Class 32 (Community trade mark No 915 488)

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

Proprietor of the Community trade mark: The applicant

Proprietor of the Community trade mark:

Applicant for the declaration of invalidity: Tirol Milch registrierte Genossenschaft mit beschränkter Haftung

Applicant for the declaration of invalidity:

Decision of the Cancellation Division: Revocation in part of the Community trade mark

Decision of the Cancellation Division:

Decision of the Board of Appeal: Annulment in part of the decision of the Cancellation Division and revocation of the Community trade mark

Decision of the Board of Appeal:

Pleas in law:

| — | Infringement of Article 51 in conjunction with Article 15(1)(a) of Regulation (EC) No 207/2009, (1) inasmuch as it was incorrectly deemed not to have been proved that the trade mark at issue in the proceedings had been used in such a way as to preserve the rights of the proprietor; |
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Infringement of Article 51 in conjunction with Article 15(1)(a) of Regulation (EC) No 207/2009, (1) inasmuch as it was incorrectly deemed not to have been proved that the trade mark at issue in the proceedings had been used in such a way as to preserve the rights of the proprietor;

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| — | Infringement of Article 75 of Regulation No 207/2009 and of fundamental Community rights, in particular the right to a fair hearing. |
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Infringement of Article 75 of Regulation No 207/2009 and of fundamental Community rights, in particular the right to a fair hearing.

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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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