Action brought on 10 June 2009 - Feng Shen Technology v OHIM - Majtczak (FS)

(Case T-227/09)

Language in which the application was lodged: English

Parties

Applicant: Feng Shen Technology Co. Ltd (Gueishan, Taiwan) (represented by: W. Festl-Wietek and P. Rath, lawyers)

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

Other party to the proceedings before the Board of Appeal: Jarosław Majtczak (Łódź, Poland)

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 1 April 2009 in case R 529/2008-4;

Declare Community trade mark No 4 431 391 invalid; and

Order OHIM to pay the costs incurred in the proceedings before the Court and the Board of Appeal.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The mark "FS" for goods in class 26 - Community trade mark No 4 431 391

Proprietor of the Community trade mark: The other party to the proceedings before the Board of Appeal

Party requesting the declaration of invalidity of the Community trade mark: The applicant

Trade mark right of the party requesting the declaration of invalidity: Several earlier trade mark registrations for the figurative sign "FS" in Taiwan, China and Ghana in relation to zippers and related products

Decision of the Cancellation Division: Rejected the request for a declaration of invalidity

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 51(1)(b) of Council Regulation 40/94 (which became Article 52(1)(b) of Council Regulation 207/2009), as the Board of Appeal failed to properly evaluate the evidence and documents provided by the parties and failed to properly analyse the facts as a precondition for a finding that the trade mark application concerned was made in bad faith

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