CELEX: 62009TN0434
Language: en
Date: 2009-10-26 00:00:00
Title: Case T-434/09: Action brought on 26 October 2009 — Centrotherm Systemtechnik v OHIM — centrotherm Clean Solutions (CENTROTHERM)

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
   
   
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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
            
         
               —
            
            
               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).