Action brought on 29 April 2010 - Apotheke DocMorris v OHIM (Representation of a green and white cross)

(Case T-196/10)

Language of the case: German

Parties

Applicant: Apotheke DocMorris Holding GmbH (Stuttgart, Germany) (represented by Y. Dick, lawyer)

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

Form of order sought

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 February 2010 in Case R 470/2009-4;

Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Figurative mark representing a green and white cross, in respect of goods and services in Classes 3, 5, 8, 9, 10, 11, 16, 21, 25, 29, 30, 32, 35-42 and 44 - Application No 5 930 979.

Decision of the Examiner: Refusal of the application.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Infringement of Article 7(1)(b) of Regulation (EC) No 207/2009 ¹, as the Board of Appeal's assessment in relation to establishing distinctiveness was incorrect in a number of respects.

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¹ - Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).