Source: EURLEX
Language: en
Format: md

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| 19.12.2009 | EN | Official Journal of the European Union | C 312/40 |

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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

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| — | 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; |

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| — | order the applicant to pay the costs |

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| — | 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)](#ntr1-C_2009312EN.01004002-E0001), 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)](#ntr2-C_2009312EN.01004002-E0002), 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.

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