Action brought on 4 March 2013 - Pro-Aqua International/OHIM - Rexair (WET DUST CAN'T FLY)

(Case T-133/13)

Language in which the application was lodged: English

Parties

Applicant: Pro-Aqua International GmbH (Ansbach, Germany) (represented by: T. Raible, lawyer)

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

Other party to the proceedings before the Board of Appeal: Rexair LLC (Troy, United States)

Form of order sought

The applicant claims that the Court should:

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 17 December 2012 (in case R 211/2012-2);

Order OHIM to pay the costs, including those incurred in the proceedings before OHIM and the Board of Appeal of OHIM.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark " WET DUST CAN'T FLY " for products and services of classes 3, 7 and 37 (Community trade mark registration No 6 668 073)

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

Applicant for the declaration of invalidity of the Community trade mark: The applicant

Grounds for the application for a declaration of invalidity: The grounds of the request for a declaration of invalidity were those laid down in Article 52(1)(a) in conjunction with Article 7(1)(b) and (c) of Council Regulation No 207/2009

Decision of the Cancellation Division: Rejected the request for a declaration of invalidity

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation No 207/2009.

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