Judgment of the General Court (Seventh Chamber) of 13 September 2012 — National Lottery Commission v OHIM — Mediatek Italia and De Gregorio (Representation of a hand)

(Case T-404/10)

‛Community trade mark — Invalidity proceedings — Community figurative mark representing a hand — Article 53(2)(c) of Regulation (EC) No 207/2009 — Existence of earlier copyright protected by national law — Burden of proof — Application by OHIM of national law — Review’

1. Community trade mark — Procedural provisions — Examination of the facts of the Office’s own motion — Cancellation proceedings — Examination restricted to the submissions of the parties — Assessment by the Office of the materiality of the facts alleged and the probative value of the evidence adduced (Council Regulation No 207/2009, Art. 76) (see para. 20)

2. Community trade mark — Surrender, revocation and invalidity — Relative grounds for invalidity — Use of the mark capable of being prohibited by virtue of another earlier right — Copyright — Figurative mark representing a hand (Council Regulation No 207/2009, Art. 53(2)(c)) (see paras 33-41)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 9 June 2010 (Case R 1028/2009-1) relating to invalidity proceedings between, on the one hand, Mediatek Italia Srl and Giuseppe De Gregorio and, on the other, the National Lottery Commission.

Operative part

The Court:

1. Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 9 June 2010 (Case R 1028/2009-1);

2. Orders OHIM to pay the costs, including those incurred by the National Lottery Commission in the proceedings before the Board of Appeal.

Judgment of the General Court (Seventh Chamber) of 13 September 2012 — National Lottery Commission v OHIM — Mediatek Italia and De Gregorio (Representation of a hand)

(Case T-404/10)

‛Community trade mark — Invalidity proceedings — Community figurative mark representing a hand — Article 53(2)(c) of Regulation (EC) No 207/2009 — Existence of earlier copyright protected by national law — Burden of proof — Application by OHIM of national law — Review’

1. Community trade mark — Procedural provisions — Examination of the facts of the Office’s own motion — Cancellation proceedings — Examination restricted to the submissions of the parties — Assessment by the Office of the materiality of the facts alleged and the probative value of the evidence adduced (Council Regulation No 207/2009, Art. 76) (see para. 20)

2. Community trade mark — Surrender, revocation and invalidity — Relative grounds for invalidity — Use of the mark capable of being prohibited by virtue of another earlier right — Copyright — Figurative mark representing a hand (Council Regulation No 207/2009, Art. 53(2)(c)) (see paras 33-41)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 9 June 2010 (Case R 1028/2009-1) relating to invalidity proceedings between, on the one hand, Mediatek Italia Srl and Giuseppe De Gregorio and, on the other, the National Lottery Commission.

Operative part

The Court:

1. Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 9 June 2010 (Case R 1028/2009-1);