Action brought on 10 August 2010 - Leifheit v OHIM - Vermop Salmon (Twist System)

(Case T-334/10)

Language in which the application was lodged: German

Parties

Applicant: Leifheit AG (Nassau, Germany) (represented by: G. Hasselblatt and V. Töbelmann, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Vermop Salmon GmbH (Gilching, Germany)

Form of order sought

Annul the decisions of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 May 2010 in joined Cases R 924/2009-1 and R 1013/2009-1;

Order OHIM to bear its own costs and to pay the costs incurred by the applicant ;

In the event that Vermop Salmon intervenes in the proceedings, order the intervener to bear its own costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: the word mark 'Twist System' for goods in Classes 7, 8 and 21

Proprietor of the Community trade mark: the applicant

Applicant for the declaration of invalidity: Vermop Salmon GmbH

Trade mark right of applicant for the declaration: the word mark 'TWIX' for goods in Class 21 and the word mark 'TWIXTER' for goods in Classes 9, 12, 21, 22 and 25

Decision of the Cancellation Division: The application for a declaration of invalidity was partially upheld

Decision of the Board of Appeal: Vermop Salmon's appeal to have the applicant's mark declared invalid in respect of additional goods was upheld and the applicant's appeal was dismissed

Pleas in law: Infringement of Article 63(1) of Regulation (EC) No 207/2009¹ as the First Board of Appeal of OHIM did not examine whether the evidence of use put forward by Vermop Salmon is sufficient to prove genuine use of the earlier Community trade marks; infringement of the first and second sentences of Article 57(2) in conjunction with Article 42(2) of Regulation No 207/2009 as the evidence of use which Vermop Salmon placed on the case-file does not prove genuine use of the earlier Community trade marks; and infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 as the marks at issue are not similar.

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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).