Case T-434/09: Action brought on 26 October 2009 — Centrotherm Systemtechnik v OHIM — centrotherm Clean Solutions (CENTROTHERM)
Date: 2009-10-26
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), brand name, services company, trade-mark law








C_2009312EN.01004002.xml










19.12.2009   


EN


Official Journal of the European Union


C 312/40





Action brought on 26 October 2009 — Centrotherm Systemtechnik v OHIM — centrotherm Clean Solutions (CENTROTHERM)
(Case T-434/09)
2009/C 312/67
Language in which the application was lodged: German

Parties


Applicant: Centrotherm Systemtechnik GmbH (Brilon, Germany) (represented by: J. Albrecht, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: centrotherm Clean Solutions GmbH & Co KG (Blaubeuren, Germany)

Form of order sought







—


Annul the decision of the Fourth Board of Appeal of 25 August in Case R 6/2008-4, in so far as the application for a declaration of revocation was upheld;










—


order the applicant to pay the costs










—


order the possible intervener to pay the costs of the intervention.





Pleas in law and main arguments


Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark CENTROTHERM for goods and services in Classes 11, 17, 19 and 42 (Community trade mark No 1 301 019)

Proprietor of the Community trade mark: The applicant

Applicant for the declaration of invalidity: centrotherm Clean Solutions GmbH & Co KG

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

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

Pleas in law: Infringement of Article 57(5) in conjunction with Article 51(1) and (2) of Regulation (EC) No 207/2009 (1), as the defendant did not adequately assess proof of use which was submitted within the time-limit;
Infringement of the duty to examine the facts of its own motion;
Infringement of Article 76(1) and (2) and Article 57(1) of Regulation No 207/2009 and of Rule 40(5) of Regulation (EC) No 2868/95 (2), since the defendant did not take into consideration the proof of use submitted with the grounds of appeal;
Incorrect exercise of discretion, since the evidence submitted, even in the event that it was submitted late, is to be taken into consideration;
In the alternative, inapplicability of Rule 40(5) of Regulation No 2868/95 under Article 241 EC, since this rule infringes Article 76(1) and Article 57(1) in conjunction with Article 51(1) and Article 162(1) of Regulation No 207/2009, Article 202 EC and general principles of Community law, in particular the legal principle of proportionality, the principle of property rights and the right to a fair trial.


(1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).

(2)  Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).