Case T-459/05: Action brought on  30 December 2005  — MPDV Mikrolab v OHIM
Date: 2006-03-11
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), information technology industry, software, trade-mark law

11.3.2006

EN

Official Journal of the European Union

C 60/47

Form of order sought

The applicant claims that the Court should:

— alter the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market of 21
October 2005 in Case R 1063/2004-2, served on 2
November 2005, as amended by Corrigendum of 16
November 2005, served on 23 November 2005, and
dismiss the application for declaration of invalidity of Com-
munity trade mark No 1 227 743 of 23 July 2003;

— in the alternative, annul that decision and refer the case
back to the Second Board of Appeal for further delibera-
tion;

— order the applicant in the invalidity proceedings to pay the
costs of the proceedings before the Cancellation Division
and the Board of Appeal and of the present action.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of
invalidity has been sought: The word mark TEK for goods in
Classes 6 and 20 (shelves and parts of shelves,
in particular
hanging baskets for shelves, all the aforesaid goods of metal or
not of wood) — Community trade mark No 1 227 743

Proprietor of the Community trade mark: The applicant

Applicant for the declaration of invalidity: Wupperman AG

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

Decision of the Board of Appeal: Annulment of the decision of
the Cancellation Division

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council
Regulation No 40/94, since the facts found by the Board of
Appeal do not justify cancellation of the mark. In addition, the
Board of Appeal has infringed the applicant's right to a fair
hearing.

Action brought on 30 December 2005 — MPDV Mikrolab
v OHIM

(Case T-459/05)

(2006/C 60/88)

Language in which the application was lodged: German

Parties

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

Form of order sought

The applicant claims that the Court should:

— annul the decision of the Second Board of Appeal of 19
the appeal proceedings R

regards

October 2005 as
1059/2004-2, and;

— order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘manufacturing
score card’ for goods and services in Classes 9, 35 and 42 —
Application No 3 334 596

Decision of the Examiner: Rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(c) of Council Regu-
lation No 40/94 as the mark for which registration is sought is
capable of being protected because the fact that the elements
constituting the mark sought could, each in themselves, or, as
part of a different constellation, perhaps have a descriptive
content is not sufficient to preclude protection.

Infringement of Article 7(1)(b) of the Regulation, inasmuch as
the overall combination of elements, as regards the goods and
services for which registration of the mark is sought, is imagi-
native and conveys an unclear and vague meaning which goes
beyond a mere bringing together of the terms.

Action brought on 11 January 2006 — PORTELA & Ca,
S.A. v OHIM

(Case T-10/06)

(2006/C 60/89)

Language in which the application was lodged: Portuguese

Parties

Applicant: PORTELA & Ca, S.A.
Portugal) (represented by João M. Pimenta, lawyer)

(S. Mamede do Coronado,

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

Applicant: MPDV Mikrolab GmbH, Mikroprozessordatenverar-
beitung und Mikroprozessorlabor (Mosbach, Germany) (repre-
sented by W. Göpfert, lawyer)

Other parties to the proceedings before the Board of Appeal: Juan
Torres Quadrado and Josep Gilbert Sanz