Action brought on 25 January 2011 - Kastenholz v OHIM - qwatchme (watch dials)
(Case T-68/11)
Language in which the application was lodged: German
Parties
Applicant: Erich Kastenholz (Troisdorf, Germany) (represented by: L. Acker, lawyer)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Other party to the proceedings before the Board of Appeal: qwatchme A/S (Vejle East, Denmark)
Form of order sought
- Annul the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 2 November 2010 in Case R 1086/2009-3;
refer the case back to the Cancellation Division for consideration of copyright protection relied on by the applicant, which was not adequately analysed by that Division;
order OHIM to pay the costs.
Pleas in law and main arguments
Registered Community design in respect of which a declaration of invalidity has been sought: Community design No 602636-0003, which shows a watch dial.
Proprietor of the Community design: qwatchme A/S.
Applicant for the declaration of invalidity of the Community trade mark: the applicant.
Grounds for the application for a declaration of invalidity: Breach of Article 25(1)(b), together with Article 4 and Article 25(1)(f) of Regulation (EC) No 6/2002,
1 for lack of novelty and infringement of Paul Heimbach's copyright in an artistic work.
Decision of the Cancellation Division: Rejection of the application for a declaration of invalidity.
Decision of the Board of Appeal: Rejection of the appeal.
Pleas in law: Breach of Article 25(1) and Article 5 and Article 6 of Regulation (EC) No 6/2002, as the Board of Appeal did not make a clear distinction between the features of 'novelty' and 'individual character', as well as breach of Article 25(1)(f) of Regulation (EC) No 6/2002, as neither the Board of Appeal nor the Cancellation Division of OHIM had duly analysed whether the Community design constitutes a prohibited use of a work which is protected under German copyright legislation.
____________1 - Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p.1).