Action brought on 15 November 2011 - Atlas Transport v OHIM - Hartmann (ATLAS TRANSPORT)

(Case T-584/11)

Language in which the application was lodged: German

Parties

Applicant: Atlas Transport GmbH (Düsseldorf, Germany) (represented by: U. Hildebrandt, K. Schmidt-Hern and B. Weichhaus, lawyers)

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

Other party to the proceedings before the Board of Appeal: Alfred Hartmann (Leer, Germany)

Form of order sought

The applicant claims that the Court should:

annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 September 2011 in Case R 2262/2010-1;

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Registered Community trade mark in respect of which an application for revocation has been made: word mark 'ATLAS TRANSPORT' for goods in Class 39.

Proprietor of the Community trade mark: the applicant.

Party applying for revocation of the Community trade mark: Alfred Hartmann.

Decision of the Cancellation Division: rejection of the application for revocation.

Decision of the Board of Appeal: appeal upheld.

Pleas in law: infringement of Rule 40(5), in conjunction with Rule 22, of Implementing Regulation No 2868/95 due to an erroneous assessment of the evidence; infringement of Article 15 of Regulation No 207/2009, since, in its literal interpretation, the defendant addressed the issue alone as to whether there had been a legitimate use of the mark for the corresponding services; infringement of Article 76(1) of Regulation No 207/2009, since, in determining the meaning of the term 'transport', the defendant referred merely to one source and thus evaluated that term without due care and insufficiently; infringement of Article 75, sentence 1, of Regulation No 207/2009, since the defendant failed to clearly reason its legal opinion; infringement of Article 75, sentence 2, and Article 76(2) of Regulation No 207/2009 as a result of a breach of the right to be heard.

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