Action brought on 17 March 2010 - Lux Management v OHIM - Zeis Excelsa (KULTE)

(Case T-130/10)

Language in which the application was lodged: English

Parties

Applicant: Lux Management Holding SA (Luxembourg, Luxembourg) (represented by: S. Mas, lawyer)

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

Other party to the proceedings before the Board of Appeal: Zeis Excelsa SPA (Montegranaro, Italy)

Form of order sought

Declare the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 January 2010 in case R 712/2008-4 without object;

In the alternative, annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 January 2010 in case R 712/2008-4 because it failed to take into account the evidence presented by the applicant;

In the alternative, annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 January 2010 in case R 712/2008-4 because it lacks motivation regarding the acquiescence of the registered Community trade mark subject of the application for revocation by the applicant; and

Order the defendant to bear the costs.

Pleas in law and main arguments

Registered Community trade mark subject of the application for revocation: The figurative mark "KULTE" for goods in classes 14, 18 and 25

Proprietor of the Community trade mark: The applicant

Party requesting the revocation of the Community trade mark: The other party to the proceedings before the Board of Appeal

Trade mark right of the party requesting the revocation: Italian trade mark registration of the figurative mark "CULT", for all goods in class 25; international trade mark registration with effect in France and the Benelux of the figurative mark "CULT", for goods in classes 14, 18 and 25

Decision of the Cancellation Division: Declared partially invalid the registration of the Community trade mark subject of the application for revocation

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 43 of Council Regulation No 207/2009 as the Board of Appeal failed to recognise that its decision is without object because of the fact that the parties have reached an agreement relating to the coexistence of the trade marks in question and the subsequent request of withdrawal; infringement of Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms as the Board of Appeal refused to admit new evidence presented by the applicant; infringement of Article 57(2) of Council Regulation No 207/2009 as the Board of Appeal erred in its assessment of the meaning of evidence transmitted and failed to provide reasons with regard to the proof of acquiescence by the other party to the proceedings before the Board of Appeal of the registered Community trade mark subject of the application for revocation.

____________