Action brought on 26 October 2009 - Centrotherm Systemtechnik v OHIM - centrotherm Clean Solutions (CENTROTHERM)

(Case T-434/09)

Language in which the application was lodged: German

Parties

Applicant: Centrotherm Systemtechnik GmbH (Brilon, Germany) (represented by: J. Albrecht, 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: centrotherm Clean Solutions GmbH & Co KG (Blaubeuren, Germany)

Form of order sought

Annul the decision of the Fourth Board of Appeal of 25 August in Case R 6/2008-4, in so far as the application for a declaration of revocation was upheld;

order the applicant to pay the costs

order the possible intervener to pay the costs of the intervention.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark CENTROTHERM for goods and services in Classes 11, 17, 19 and 42 (Community trade mark No 1 301 019)

Proprietor of the Community trade mark: The applicant

Applicant for the declaration of invalidity: centrotherm Clean Solutions GmbH & Co KG

Decision of the Cancellation Division: Revocation of the Community trade mark

Decision of the Board of Appeal: Annulment in part of the decision of the Cancellation Division and partial revocation of the Community trade mark

Pleas in law: Infringement of Article 57(5) in conjunction with Article 51(1) and (2) of Regulation (EC) No 207/2009 ¹ , as the defendant did not adequately assess proof of use which was submitted within the time-limit;

Infringement of the duty to examine the facts of its own motion;

Infringement of Article 76(1) and (2) and Article 57(1) of Regulation No 207/2009 and of Rule 40(5) of Regulation (EC) No 2868/95 ² , since the defendant did not take into consideration the proof of use submitted with the grounds of appeal;

Incorrect exercise of discretion, since the evidence submitted, even in the event that it was submitted late, is to be taken into consideration;

In the alternative, inapplicability of Rule 40(5) of Regulation No 2868/95 under Article 241 EC, since this rule infringes Article 76(1) and Article 57(1) in conjunction with Article 51(1) and Article 162(1) of Regulation No 207/2009, Article 202 EC and general principles of Community law, in particular the legal principle of proportionality, the principle of property rights and the right to a fair trial.

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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).

² - Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).