CELEX: 62011TN0312
Language: en
Date: 2011-06-14 00:00:00
Title: Case T-312/11: Action brought on 14 June 2011 — Süd-Chemie v OHIM — BYK-Cera (CERATIX)

13.8.2011   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 238/32
            
         Action brought on 14 June 2011 — Süd-Chemie v OHIM — BYK-Cera (CERATIX)
   (Case T-312/11)
   2011/C 238/53
   Language in which the application was lodged: German
   
      Parties
   
   
      Applicant: Süd-Chemie AG (Munich, Germany) (represented by: W. Baron von der Osten-Sacken and A. Wenninger-Lenz, lawyers)
   
      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
   
      Other party to the proceedings before the Board of Appeal: BYK-Cera BV (Deventer, Netherlands)
   
      Form of order sought
   
   The applicant claims that the Court should:
   
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               Annul the contested decision of the Fourth Board of Appeal of OHIM of 8 April 2011 (Case R 1585/2010-4);
            
         
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               Order the Office for Harmonisation in the Internal Market to pay the costs.
            
         
      Pleas in law and main arguments
   
   
      Applicant for a Community trade mark: BYK-Cera BV
   
      Community trade mark concerned: the word mark ‘CERATIX’ for goods in Class 1 — application No 6 358 832
   
      Proprietor of the mark or sign cited in the opposition proceedings: the applicant
   
      Mark or sign cited in opposition: the national word mark ‘CERATOFIX’ for goods in Class 1
   
      Decision of the Opposition Division: the opposition was upheld
   
      Decision of the Board of Appeal: the Opposition Division’s decision was annulled and the opposition was rejected
   
      Pleas in law: Infringement of Article 15 and Article 42(2) and (3) of Regulation No 207/2009 as the defendant:
   
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               Erred in reducing the evidential value of the documents submitted by the applicant with the general reasoning that they are connected with the applicant itself;
            
         
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               Did not take account of promotional measures as ‘genuine use’;
            
         
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               Did not include all the relevant circumstances in assessing whether the use of the trade mark was genuine and;
            
         
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               Did not examine the evidence of use provided as a whole.