Action brought on 21 May 2010 - Merlin and Others v OHIM - Dusyma (Games)

(Case T-231/10)

Language in which the application was lodged: German

Parties

Applicants: Merlin Handelsgesellschaft mbH (Forchtenberg, Germany), Rolf Krämer (Forchtenberg), BLS Basteln, Lernen, Spielen GmbH (Forchtenberg), Andreas Hohl (Künzelsau, Germany), represented by: R. Kramer, 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: Dusyma Kindergartenbedarf GmbH (Schorndorf, Germany)

Form of order sought

annul the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 March 2010 in Case R 879/2009-3 and declare Community design No 526 801-0011 invalid;

in the alternative, annul the decision of the Third Board of Appeal and refer the case back to the Board of Appeal;

order the defendant to pay the costs.

Pleas in law and main arguments

Registered Community design in respect of which a declaration of invalidity has been sought: Community design No 526 801-0011 for the products 'Games (including educational games)'.

Proprietor of the Community trade mark: Dusyma Kindergartenbedarf GmbH.

Applicant for the declaration of invalidity: the Applicants.

Decision of the Cancellation Division: Rejection of the application for a declaration of invalidity.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Infringement of Article 3 of Council Regulation (EC) No 6/2002 ¹ on Community designs, because the Board of Appeal misinterpreted the provisions of that article concerning definitions and did not take into consideration the fact that a Community design can also consist in the appearance of a part of a product.

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¹ - Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1).