Action brought on 14 February 2013 - K-Swiss/OHIM - Künzli SwissSchuh (Trainer with five stripes)

(Case T-85/13)

Language in which the application was lodged: English

Parties

Applicant: K-Swiss, Inc. (California, United States) (represented by: R. Niebel and K. Tasma, lawyers)

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

Other party to the proceedings before the Board of Appeal: Künzli SwissSchuh AG (Windisch, Switzerland)

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), dated 30 October 2012 in Case R 174/2011-2; and

Order the defendant and, as appropriate, the intervener to bear the coasts of the action.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The figurative mark representing a trainer with five stripes − Community trade mark registration No 4 771 978

Proprietor of the Community trade mark: The applicant

Applicant for the declaration of invalidity of the Community trade mark: The other party to the proceedings before the Board of Appeal

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) of Council Regulation No 207/2009

Decision of the Cancellation Division: Declared the contested Community trade mark invalid

Decision of the Board of Appeal: Dismissed the appeal

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

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