Action brought on 17 January 2011 - Germans Boada v OHIM (Shape of a ceramics cutter)

(Case T-25/11)

Language of the case: Spanish

Parties

Applicant: Germans Boada (Rubí, Spain) (represented by J. Carbonell Callicó, lawyer)

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

Form of order sought

The applicant claims that the Court should:

alter the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 28 October 2010, in Case R 771/2010-1, in accordance with Article 65(3) CTMR and on grounds of infringement of the principle of equal treatment and infringement of Article 7(1)(b) and (3) CTMR, and register three-dimensional trade mark 7.317.911;

in the alternative and solely in the event that the first claim does not succeed, annul the decision of the First Board of Appeal of OHIM of 28 October 2010, in Case R 771/2010-1, on the ground of infringement of Articles 75 and 76 CTMR;

order OHIM to pay the costs, in accordance with Article 87(2) CTMR.

Pleas in law and main arguments

Community trade mark concerned: Three-dimensional trade mark in the shape of a ceramics cutter, for goods in Class 8

Decision of the Examiner: Application refused

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 7(1)(b) of Regulation (EC) No 207/2009, ¹ since the mark applied for has distinctive character, and of Article 7(3) of Regulation (EC) No 207/2009, on the ground that it has been shown that the mark concerned has acquired distinctiveness through use. Infringement of the principle of equal treatment and of Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, since OHIM should have taken into account only the facts and evidence submitted by the parties in due time. Infringement of Articles 75 and 76 of Regulation (EC) No 207/2009, on the ground that OHIM failed to take into account facts and evidence submitted by the applicant in due form and in due time.

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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).