CELEX: 62011TN0068
Language: en
Date: 2011-01-25 00:00:00
Title: Case T-68/11: Action brought on 25 January 2011 — Kastenholz v OHIM — qwatchme (watch dials)

9.4.2011   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 113/15
            
         Action brought on 25 January 2011 — Kastenholz v OHIM — qwatchme (watch dials)
   (Case T-68/11)
   2011/C 113/30
   Language in which the application was lodged: German
   
      Parties
   
   
      Applicant: Erich Kastenholz (Troisdorf, Germany) (represented by: L. Acker, lawyer)
   
      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   
      Other party to the proceedings before the Board of Appeal: qwatchme A/S (Vejle East, Denmark)
   
      Form of order sought
   
   
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               Annul the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 2 November 2010 in Case R 1086/2009-3;
            
         
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               refer the case back to the Cancellation Division for consideration of copyright protection relied on by the applicant, which was not adequately analysed by that Division;
            
         
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               order OHIM to pay the costs.
            
         
      Pleas in law and main arguments
   
   
      Registered Community design in respect of which a declaration of invalidity has been sought: Community design No 602636-0003, which shows a watch dial.
   
      Proprietor of the Community design: qwatchme A/S.
   
      Applicant for the declaration of invalidity of the Community trade mark: the applicant.
   
      Grounds for the application for a declaration of invalidity: Breach of Article 25(1)(b), together with Article 4 and Article 25(1)(f) of Regulation (EC) No 6/2002, (1) for lack of novelty and infringement of Paul Heimbach’s copyright in an artistic work.
   
      Decision of the Cancellation Division: Rejection of the application for a declaration of invalidity.
   
      Decision of the Board of Appeal: Rejection of the appeal.
   
      Pleas in law: Breach of Article 25(1) and Article 5 and Article 6 of Regulation (EC) No 6/2002, as the Board of Appeal did not make a clear distinction between the features of ‘novelty’ and ‘individual character’, as well as breach of Article 25(1)(f) of Regulation (EC) No 6/2002, as neither the Board of Appeal nor the Cancellation Division of OHIM had duly analysed whether the Community design constitutes a prohibited use of a work which is protected under German copyright legislation.
   
      (1)  Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1).