Action brought on 8 September 2010 - National Lottery Commission v OHIM - Mediatek Italia and De Gregorio (Representation of a hand)

(Case T-404/10)

Language in which the application was lodged: English

Parties

Applicant: National Lottery Commission (London, United Kingdom) (represented by: B. Brandreth, Barrister)

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

Other parties to the proceedings before the Board of Appeal: Mediatek Italia Srl (Napoli, Italy), Giuseppe De Gregorio (Napoli, Italy)

Form of order sought

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 9 June 2010 in case R 1028/2009-1;

Remit the case to the Cancellation Division;

Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The figurative mark representing a hand with two crossed fingers and a smiling face for goods and services in classes 9, 16, 25, 28 and 41 - Community trade mark registration No 4800389

Proprietor of the Community trade mark: The applicant

Party requesting the declaration of invalidity of the Community trade mark: The other parties to the proceedings before the Board of Appeal

Trade mark right of the party requesting the declaration of invalidity: The parties requesting the declaration of invalidity grounded their request on relative grounds for invalidity pursuant to Articles 53(1)(c) and 53(2)(c) of Council Regulation (EC) No 207/2009

Decision of the Cancellation Division: Declared the Community trade mark invalid

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The applicant claims that the contested decision infringes Article 53(2) of Council Regulation (EC) No 207/2009, as the Board of Appeal erred in law in its assessment of this article and in its approach to the assessment of the facts, and failed to exercise its powers of investigation. The applicant also considers that the Board of Appeal failed to exercise the full remit of its powers under Article 78 of Council Regulation (EC) No 207/2009.

____________