Action brought on 6 July 2010 - Seven Towns Ltd v OHIM

(Case T-293/10)

Language of the case: English

Parties

Applicant: Seven Towns Ltd (London, United Kingdom) (represented by: E. Schäfer, lawyer)

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

Form of order sought

Partially annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 April 2010 in case R 1475/2009-1, as far as Community trade mark application No 5650817 was rejected;

Order the defendant to pay the costs of the proceedings including applicant's costs of legal representation.

Pleas in law and main arguments

Community trade mark concerned: A colour per se mark described as "six surfaces being geometrically arranged in three pairs of parallel surfaces, with each pair being arranged perpendicularly to the other two pairs characterised by (i) any two adjacent surfaces having different colours and (ii) each surface having a grid structure formed by black borders dividing the surface into nine equal segments". The indicated colours were red (PMS 200C); green (PMS 347C); blue (PMS 293C); orange (PMS 021C); yellow (PMS 012C); white and black for goods in class 28 - Community trade mark application No 5650817

Decision of the examiner: Refused the application for a Community trade mark

Decision of the Board of Appeal: Annulled the contested decision and rejected Community trade mark application No 5650817

Pleas in law: The applicant advances two pleas in law in support of its application.

On the basis of its first plea, the applicant claims that the contested decision violates the principles of due process by infringing Articles 80(1) and 80(2) of Council Regulation (EC) No 207/2009 in conjunction with Rule 53(a) of Commission Regulation (EC) No 2868/95, as the Board of Appeal erroneously examined the substantive issue.

By its second plea, the applicant considers that the contested decision violates its right of fair proceedings by infringing Article 64(1) of Council Regulation (EC) No 207/2009, as the Board of Appeal based its decision on a completely new argument without the Applicant having been invited to submit its observations.

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