Action brought on 22 May 2012 - MPM-Quality and Eutech v OHIM - Elton hodinářská (MANUFACTURE PRIM 1949)

(Case T-215/12)

Language in which the application was lodged: Czech

Parties

Applicants: MPM-Quality v.o.s. (Frýdek-Místek, Czech Republic) and Eutech akciová společnost (Šternberk, Czech Republic) (represented by: M. Kyjovský, lawyer)

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

Other party to the proceedings before the Board of Appeal: Elton hodinářská, a.s.

Form of order sought

annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 5 March 2012 in Case R 826/2010-4,

order the defendant to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Composite trade mark 'MANUFACTURE PRIM 1949' no 3531662 for goods and services in classes 9, 14 and 35

Proprietor of the Community trade mark: Elton hodinářská, a.s.

Applicant for the declaration of invalidity of the Community trade mark: The applicants

Grounds for the application for a declaration of invalidity: Application on the basis of Article 51(1)(b) in conjunction with Article 8(1)(a) and (b) and Article 8(5) of Council Regulation (EC) No 207/2009, and on the basis of Article 52(1)(b) of that regulation

Decision of the Cancellation Division: Application dismissed

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: The applicants submit that the Board of Appeal infringed Articles 8(1)(a) and (b), 8(5) and 52(1)(b) of Council Regulation (EC) No 207/2009 ('the Regulation') in that it:

proceeded from an incorrect interpretation of the burden of argument and proof under Articles 54 and 165(4) of the Regulation;

incorrectly applied the case-law of the Court of Justice;

did not take account of the substantial exploitation, well-known character and use of the international trade mark, which are important for the perception of the sign PRIM by the relevant consumers;

incorrectly applied Article 55 in relation to Article 41 of the Regulation by asserting that the earlier rights to the sign must belong to the same owner;

did not express a view on the facts put forward by the applicants and the evidence submitted by them, did not accord that evidence its significance, and did not deal at all with some of it (e.g. the licence agreements);

did not take account of the fact that similar marks containing the word 'PRIM' are already registered in the European Union.

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