CELEX: 62010TN0130
Language: en
Date: 2010-03-17 00:00:00
Title: Case T-130/10: Action brought on 17 March 2010 — Lux Management v OHIM — Zeis Excelsa (KULTE)

22.5.2010   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 134/46
            
         Action brought on 17 March 2010 — Lux Management v OHIM — Zeis Excelsa (KULTE)
   (Case T-130/10)
   2010/C 134/75
   Language in which the application was lodged: English
   
      Parties
   
   
      Applicant: Lux Management Holding SA (Luxembourg, Luxembourg) (represented by: S. Mas, lawyer)
   
      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   
      Other party to the proceedings before the Board of Appeal: Zeis Excelsa SPA (Montegranaro, Italy)
   
      Form of order sought
   
   
               —
            
            
               Declare the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 January 2010 in case R 712/2008-4 without object;
            
         
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               In the alternative, annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 January 2010 in case R 712/2008-4 because it failed to take into account the evidence presented by the applicant;
            
         
               —
            
            
               In the alternative, annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 January 2010 in case R 712/2008-4 because it lacks motivation regarding the acquiescence of the registered Community trade mark subject of the application for revocation by the applicant; and
            
         
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               Order the defendant to bear the costs.
            
         
      Pleas in law and main arguments
   
   
      Registered Community trade mark subject of the application for revocation: The figurative mark ‘KULTE’ for goods in classes 14, 18 and 25
   
      Proprietor of the Community trade mark: The applicant
   
      Party requesting the revocation of the Community trade mark: The other party to the proceedings before the Board of Appeal
   
      Trade mark right of the party requesting the revocation: Italian trade mark registration of the figurative mark ‘CULT’, for all goods in class 25; international trade mark registration with effect in France and the Benelux of the figurative mark ‘CULT’, for goods in classes 14, 18 and 25
   
      Decision of the Cancellation Division: Declared partially invalid the registration of the Community trade mark subject of the application for revocation
   
      Decision of the Board of Appeal: Dismissed the appeal
   
      Pleas in law: Infringement of Article 43 of Council Regulation No 207/2009 as the Board of Appeal failed to recognise that its decision is without object because of the fact that the parties have reached an agreement relating to the coexistence of the trade marks in question and the subsequent request of withdrawal; infringement of Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms as the Board of Appeal refused to admit new evidence presented by the applicant; infringement of Article 57(2) of Council Regulation No 207/2009 as the Board of Appeal erred in its assessment of the meaning of evidence transmitted and failed to provide reasons with regard to the proof of acquiescence by the other party to the proceedings before the Board of Appeal of the registered Community trade mark subject of the application for revocation.