Action brought on 7 July 2010 - Arrieta D. Gross v OHIM - Toro Araneda (BIODANZA)

(Case T-298/10)

Language in which the application was lodged: English

Parties

Applicant: Christina Arrieta D. Gross (Hamburg, Germany) (represented by: J.-P. Ewert, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal: Rolando Mario Toro Araneda (Santiago de Chile, Chile)

Form of order sought

Annul the decision of the Second Board of Appeal of the Office For Harmonisation in the Internal Market (Trade Marks and Designs) of 13 April 2010 in case R 1149/2009-2;

Order the defendant to bear the costs of the proceedings; and

Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal, should it become an intervening party in this case.

Pleas in law and main arguments

Applicant for the Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark "BIODANZA", for goods and services in classes 16, 41 and 44

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited: German trade mark registration No 2905152 of the word mark "BIODANZA", for goods and services in classes 16 and 41; Danish trade mark registration No VA 199500708 of the word mark "BIODANZA", for goods and services in classes 16, 41 and 44

Decision of the Opposition Division: Upheld the opposition for part of the contested goods and services and allowed the application to proceed for the remaining goods of the application

Decision of the Board of Appeal: Upheld the appeal, annulled the contested decision and rejected the opposition entirely

Pleas in law: The applicant advances two pleas in law in support of its application.

On the basis of its first plea, the applicant claims that the contested decision infringes Articles 42(2) and 42(5) of Council Regulation (EC) No 207/2009, as the Board of Appeal wrongly found that the applicant did not prove that the earlier trade mark has been put to genuine use in a Member State in which the earlier national trade mark is protected for use in the Community.

By its second plea, the applicant considers that the contested decision infringes Rule 22(2) of Commission Regulation (EC) No 2868/95, as the Board of Appeal failed to invite the applicant to provide the proof required as it should have specified.

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