Action brought on 6 November 2009 - Simba Toys v OHIM - Seven Towns (Three-dimensional representation of a cubic toy)
(Case T-450/09)
Language in which the application was lodged: English
Parties
Applicant: Simba Toys GmbH & Co. KG (Fürth, Germany) (represented by: O. Ruhl, lawyer)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Other party to the proceedings before the Board of Appeal: Seven Towns Ltd (London, United Kingdom)
Form of order sought
Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 September 2009 in case R 1526/2008-2; and
Order the defendant and the other party to the proceedings before the Board of Appeal to pay the costs incurred in the appeal proceedings and those incurred before the Court.
Pleas in law and main arguments
Registered Community trade mark subject of the application for a declaration of invalidity: A three-dimensional representation of a cubic toy for goods in class 28
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
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 Article 7(1)(b),(c) and (e) of Council Regulation 207/2009, as the Board of Appeal wrongly assessed the absolute grounds for refusal presented by the applicant; Infringement of Article 75 of Council Regulation No 207/2009 as the Board of Appeal failed to state reasons why it denied the ground for revocation under Article 7(1)(c) of the said regulation; Infringement of Article 76(1) of Council Regulation No 207/2009 as the Board of Appeal failed to identify fully the features of the trade mark subject of the application for a declaration of invalidity and failed to take into account certain features of such trade mark.
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