Judgment of the General Court (Seventh Chamber) of 13 September 2012 — National Lottery Commission v OHIM — Mediatek Italia and De Gregorio (Representation of a hand)

(Case T‑404/10)

Community trade mark — Invalidity proceedings — Community figurative mark representing a hand — Article 53(2)(c) of Regulation (EC) No 207/2009 — Existence of earlier copyright protected by national law — Burden of proof — Application by OHIM of national law — Review

1.                     Community trade mark — Procedural provisions — Examination of the facts of the Office’s own motion — Cancellation proceedings — Examination restricted to the submissions of the parties — Assessment by the Office of the materiality of the facts alleged and the probative value of the evidence adduced (Council Regulation No 207/2009, Art. 76) (see para. 20)

2.                     Community trade mark — Surrender, revocation and invalidity — Relative grounds for invalidity — Use of the mark capable of being prohibited by virtue of another earlier right — Copyright — Figurative mark representing a hand (Council Regulation No 207/2009, Art. 53(2)(c)) (see paras 33-41)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 9 June 2010 (Case R 1028/2009-1) relating to invalidity proceedings between, on the one hand, Mediatek Italia Srl and Giuseppe De Gregorio and, on the other, the National Lottery Commission.

Operative part

The Court:

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

2. Orders OHIM to pay the costs, including those incurred by the National Lottery Commission in the proceedings before the Board of Appeal.