CELEX: 62009TN0501
Language: en
Date: 2009-12-08 00:00:00
Title: Case T-501/09: Action brought on 8 December 2009 — PhysioNova v OHIM — Flex Equipos de Descanso (FLEX)

13.2.2010   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 37/46
            
         Action brought on 8 December 2009 — PhysioNova v OHIM — Flex Equipos de Descanso (FLEX)
   (Case T-501/09)
   2010/C 37/67
   Language in which the application was lodged: German
   
      Parties
   
   
      Applicant: PhysioNova GmbH (Erlangen, Germany) (represented by: J. Klinik, 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: Flex Equipos de Descanso, SA (Madrid, Spain)
   
      Form of order sought
   
   
               —
            
            
               Annul the contested decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 September 2009 in Case R 1/2009-1;
            
         
               —
            
            
               amend the contested decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) in Case R 1/2009-1 so as to overrule the decision of the Cancellation Division of 27. October 2008 in Case 2237 C;
            
         
               —
            
            
               order OHIM to pay the costs of the proceedings, including those incurred during the appeal proceedings.
            
         
      Pleas in law and main arguments
   
   
      Registered Community trade mark in respect of which a declaration of invalidity has been sought: the Community figurative mark ‘FLEX’ No 2 275 220 for goods and services in classes 6, 10, 17 and 20
   
      Proprietor of the Community trade mark: Flex Equipos de Descanso, SA
   
      Applicant for the declaration of invalidity: PhysioNova GmbH
   
      Trade mark right of applicant for the declaration: the German trade mark No 39 903 314‘PhysioFlex’ and the German trade mark No 39 644 431‘Rotoflex’
   
      Decision of the Cancellation Division: Rejection of the application for declaration of invalidity
   
      Decision of the Board of Appeal: Dismissal of the appeal
   
      Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 (1), since there is a likelihood of confusion between the trade marks at issue
   
      (1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).