Action brought on 24 June 2009 - Ralf Schräder v CPVO (Lemon Symphony)
(Case T -242/09)
Language in which the application was lodged: German
Parties
Applicant: Ralf Schräder (Lüdinghausen, Germany) (represented by: T. Leidereiter and W.-A. Schmidt, lawyers)
Defendant: Community Plant Variety Office (CPVO)
Other party to the proceedings before the Board of Appeal of OHIM: Jørn Hansson (Søndersø, Denmark)
Form of order sought
Annul the decision of the Board of Appeal of CPVO of 23 January 2009;
Order the defendant to pay the costs.
Pleas in law and main arguments
Community trade mark concerned: Lemon Symphony
Proprietor of the mark or sign cited in the opposition proceedings: Jørn Hansson.
Decision of the Community Plant Variety Office, appealed against before the Board of Appeal: Refusal to annul Community plant variety right of for Lemon Symphony in accordance with Article 20(1)(a) of Council Regulation (EC) No 2100/94
1 Appellant before the Board of Appeal: the applicant
Decision of the Board of Appeal: dismissal of the appeal
Pleas in law:
Infringement of Article 76 of Regulation No 2100/94 and the generally recognised principles of procedure within the meaning of Article 81 of Regulation No 2100/94 insofar as the Board of Appeal ruled in the contested decision without sufficiently investigating the facts of the case;
Infringement of Article 20(1)(a) and Article 7 of Regulation No 2100/94 insofar as the Board of Appeal apparently wrongly assumed that the applicant could not fulfil the conditions referred to in Article 20(1)(a) and accordingly, failed to appreciate the scope of that provision;
Infringement of Article 75 of Regulation No 2100/94 insofar as the Board of Appeal based its ruling on grounds on which the applicant did not have an opportunity to express itself before the decision;
Infringement of Article 63(1) and (2) of Regulation No 1239/95
2 insofar as the essentials of the oral proceedings were not properly recorded.