Action brought on 8 December 2009 - PhysioNova v OHIM - Flex Equipos de Descanso (FLEX)
(Case T-501/09)
Language in which the application was lodged: German
Parties
Applicant: PhysioNova GmbH (Erlangen, Germany) (represented by: J. Klinik, lawyer)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Other party to the proceedings before the Board of Appeal of OHIM: Flex Equipos de Descanso, SA (Madrid, Spain)
Form of order sought
- Annul the contested decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 September 2009 in Case R 1/2009-1;
- amend the contested decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) in Case R 1/2009-1 so as to overrule the decision of the Cancellation Division of 27. October 2008 in Case 2237 C;
- order OHIM to pay the costs of the proceedings, including those incurred during the appeal proceedings.
Pleas in law and main arguments
Registered Community trade mark in respect of which a declaration of invalidity has been sought: the Community figurative mark "FLEX" No 2 275 220 for goods and services in classes 6, 10, 17 and 20
Proprietor of the Community trade mark: Flex Equipos de Descanso, SA
Applicant for the declaration of invalidity: PhysioNova GmbH
Trade mark right of applicant for the declaration: the German trade mark No 39 903 314 "PhysioFlex" and the German trade mark No 39 644 431 "Rotoflex"
Decision of the Cancellation Division: Rejection of the application for declaration of invalidity
Decision of the Board of Appeal: Dismissal of the appeal
Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009
1, since there is a likelihood of confusion between the trade marks at issue
____________1 - Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).