Judgment — ECLI:EU:T:2011:211
Date: 2011-05-12
Language of the case: German
Court formation: Seventh Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded
Origin: Austria

Action brought on 4 December 2009 - Jager & Polacek v OHIM- RT Mediasolutions (REDTUBE) (Case T -488/09) Language in which the application was lodged: German Parties Applicant: Jager & Polacek GmbH (Vienna, Austria) (represented by: A. Renck, V. von Bomhard, T. Dolde, lawyers) Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) Other party/parties to the proceedings before the Board of Appeal of OHIM: RT Mediasolutions s.r.o. (Brno, Czech Republic) 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; - order OHIM to pay the costs of the proceedings. Pleas in law and main arguments Applicant for a Community trade mark: RT Mediasolutions s.r.o Community trade mark concerned: the word mark "REDTUBE" for goods and services in classes 9, 38 and 41 (Application No 6 096 309) Proprietor of the mark or sign cited in the opposition proceedings: Jager & Polacek GmbH Mark or sign cited in opposition: a non-registered trade mark "Redtube" Decision of the Opposition Division: The notice of opposition is deemed not to have been entered Decision of the Board of Appeal: Rejection of the appeal Pleas in law: Infringement of Article 8(2) of Regulation (EC) No 216/961 in conjunction with Article 63(2) of Regulation (EC) No 207/20092, since the applicant was not given an opportunity to submit a reply; 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 2868/953 und Article 8(3)(a) and (b) of Regulation (EC) No 2869/954, 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. ____________ 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), 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) 3 - Council Regulation (EC) No 207/2009 of February 2009 on the Community trade mark (OJ L 78 of 24.3.2009, p.1) 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)