Action brought on 11 February 2011 - Antrax ItM v OHIM - Heating Company (Radiators for heating)

(Case T-83/11)

Language in which the application was lodged: Italian

Parties

Applicant: Antrax It Srl (Resana, Italy) (represented by: L. Gazzola, lawyer)

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

Other party to the proceedings before the Board of Appeal: Heating Company BVBA (The) (Dilsen, Belgium)

Form of order sought

The applicant claims that the Court should:

annul the decision of the Third Board of Appeal of OHIM of 2 November 2010, in so far as it declared Community design No 000593959-0001 invalid;

annul the decision of the Third Board of Appeal of OHIM of 2 November 2010 in so far as it ordered Antrax It Srl to pay the costs incurred by The Heating Company BVBA in the proceedings before OHIM;

order OHIM and The Heating Company BVBA to pay Antrax It SRL the costs, dues and legal fees relating to the present proceedings, together with any additional sums required by law;

order The Heating Company BVBA to pay Antrax It Srl the costs, dues and legal fees incurred by the latter in the proceedings before OHIM, together with any additional sums required by law.

Pleas in law and main arguments

Registered Community design in respect of which a declaration of invalidity has been sought: Community design No 000593959/0001 (Radiators for heating)

Proprietor of the Community design: The applicant

Applicant for the declaration of invalidity of the Community design: The Heating Company BVBA

Grounds for the application for a declaration of invalidity: The contested Community design does not meet the requirements laid down in Articles 4 to 9 of the Community Designs Regulation (CDR), since it lacks distinctive characteristics when compared with German design No 5 covered by the multiple registration No 401 10481.8, published upon application by The Heating Company BVBA and valid in France, Italy and the Benelux as international design No DM/060899

Decision of the Cancellation Division: To declare the Community design invalid

Decision of the Board of Appeal: To annul the contested decision and declare the Community design invalid

Pleas in law: The individual character of Community design No 000593959-0001

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