Action brought on 23 December 2009 - Smart Technologies v OHIM (WIR MACHEN DAS BESONDERE EINFACH)

(Case T-523/09)

Language of the case: English

Parties

Applicant(s): Smart Technologies ULC (Calgary, Canada) (represented by: M. Edenborough, Barrister)

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

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 29 September 2009 in case R 554/2009-2;

In the alternative, alter the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 September 2009 in case R 554/2009-2, to state that the Community trade mark concerned possesses sufficient distinctive character that no objection to its registration may be raised under Article 7(1)(b) of Council Regulation No 207/2009; and

Order the defendant to pay the applicant's costs of and occasioned by this appeal.

Pleas in law and main arguments

Community trade mark concerned: The word mark "WIR MACHEN DAS BESONDERE EINFACH" for goods in class 9

Decision of the examiner: Refused the application for a Community trade mark

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 7(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly found that the Community trade mark concerned was not eligible for registration due to the fact that it is purportedly devoid of any distinctive character..

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