Action brought on 20 November 2009 - Herm. Sprenger v OHIM - Kieffer Sattlerwarenfabrik (form of a stirrup)

(Case T-463/09)

Language in which the application was lodged: German

Parties

Applicant: Herm. Sprenger GmbH & Co. KG (Iserlohn, Germany) (represented by: V. Schiller, 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: Georg Kieffer Sattlerwarenfabrik GmbH (Munich, Germany)

Form of order sought

set aside the decision delivered on 4 September 2009 by the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) in Appeal Proceedings R 1614/2008-4;

dismiss the application brought by the company Georg Kieffer Sattlerwarenfabrik GmbH for a declaration that the applicant's Community trade mark No 1 599 620 is invalid;

order OHIM to pay the costs of the proceedings.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: the three-dimensional Community trade mark No 1 599 620 for goods in Class 6

Proprietor of the Community trade mark: the applicant

Applicant for the declaration of invalidity: Georg Kieffer Sattlerwarenfabrik GmbH

Decision of the Cancellation Division: dismissal of the application for a declaration of invalidity

Decision of the Board of Appeal: annulment of the decision of the Cancellation Division and declaration that the Community trade mark in issue is invalid

Pleas in law:

Breach of Article 52(1)(a), in conjunction with Article 7(1), of Regulation (EC) No 207/2009 ¹ on the ground of an incorrect finding that the mark is devoid of any original distinctive character;

Breach of Article 52(1)(a) and 52(2), in conjunction with Article 7(3), of Regulation (EC) No 207/2009 on the ground that it was wrongly assumed that the disputed mark had not acquired distinctive character through use;

Breach of the first clause of Article 76(1) of Regulation No 207/2009 in that the relevant facts were not examined in the requisite manner;

Breach of Article 83 of Regulation No 207/2009 in respect of the rights of the defence;

Breach of Article 77(1) of Regulation No 207/2009 in that the Board of Appeal ought to have acceded to the applicant's alternative request for oral proceedings;

Breach of the EC Treaty in respect of the basic right to equitable proceedings.

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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).