Action brought on 16 March 2009 - Ravensburger v OHIM - Educa Borras (MEMORY)

(Case T-108/09)

Language in which the application was lodged: English

Parties

Applicants: Ravensburger AG (Ravensburg, Germany) (represented by: R. Kunze, lawyer and Solicitor and G. Würtenberger, lawyer)

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

Other party to the proceedings before the Board of Appeal: Educa Borras S.A. (Sant Quirze del Valles, Spain)

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 8 January 2009 in case R 305/2008-2; and

Order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The word mark "MEMORY" for goods in classes 9 and 28

Proprietor of the Community trade mark: The applicant

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

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) in conjunction with Article 51(1)(a) of Council Regulation 40/94 as the Board of Appeal wrongly considered the term "memory" to be descriptive and lacking distinctive character at the time the cancellation proceedings took place, and thereby wrongly ignored that only those circumstances presented at the time of registration of the trade mark in question can be taken into account; Infringement of Article 7(1)(b) and (c) in conjunction with Article 51(1)(a) of Council Regulation 40/94 as the Board of Appeal wrongly considered the use of the term "memory" to be descriptive based on only two references of use within the European Community and without further determination whether these suggest descriptive use, thereby disregarding the long-term unchallenged use of the registered trade mark in question for games in a competitive consumer-oriented marketing; The Board of Appeal wrongly based its confirmation of the descriptive and non-distinctive character of the registered trade mark in question on unevaluated sources having their origin in countries outside the European Union; Infringement of Article 75 of Council Regulation 40/94 as the Board of Appeal erred when refusing to grant the request to summons for a hearing lodged by the applicant.

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