Action brought on 11 August 2011 - Luna International v OHMI - Asteris (Al bustan)

(Case T-454/11)

Language in which the application was lodged: English

Parties

Applicant: Luna International Ltd (London, United Kingdom) (represented by: S. Malynicz, Barrister)

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

Other party to the proceedings before the Board of Appeal: Asteris Industrial and Commercial Company SA (Athens, Greece)

Form of order sought

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 May 2011 in case R 1358/2008-2;

Order the defendant and the other party to the proceedings to bear their own costs and pay those of the applicant.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The figurative mark "Al bustan", for goods in classes 29, 30, 31 and 32 - Community trade mark registration No 3540846

Proprietor of the Community trade mark: The applicant

Applicant for the declaration of invalidity of the Community trade mark: The other party to the proceedings before the Board of Appeal

Grounds for the application for a declaration of invalidity: The party requesting the declaration of invalidity grounded its request pursuant to Articles 51(1)(b) and 52(1)(a) of Council Regulation (EC) No 207/2009, and based its request on the earlier Greek trade mark registration No 137497 of the figurative mark "AL BUSTAN", for goods in class 29

Decision of the Cancellation Division: Declared the Community trade mark invalid in respect of part of the contested goods

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 53(1), 57(2) and 57(3) of Council Regulation No 207/2009, as the Board of Appeal wrongly concluded that the proprietor of the earlier national mark had furnished proof that during the five years preceding the date of the application for declaration of invalidity, the earlier mark had been put to genuine use in the Member State in which it was registered in connection with the goods for which it was registered or that there were proper reasons for non-use. Further the Board of Appeal made impermissible inferences from material of low (or no) evidentiary value.

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