Action brought on 4 June 2012 - Gamesa Eólica v OHIM - Enercon (horizontal combination of green colours)

(Case T-245/12)

Language in which the application was lodged: English

Parties

Applicant(s): Gamesa Eólica, SL (Sarriguren, Spain) (represented by: E. Armijo Chávarri and A. Sanz Cerralbo, lawyers)

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

Other party to the proceedings before the Board of Appeal: Enercon GmbH (Aurich, Germany)

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 1 March 2012 in case R 260/2011-1;

Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The figurative mark representing a horizontal combination of green colours, for goods in class 7 - Community trade mark registration No 2346542

Proprietor of the Community trade mark: The other party to the proceedings before the Board of Appeal

Applicant for the declaration of invalidity of the Community trade mark: The applicant

Grounds for the application for a declaration of invalidity: The party requesting the declaration of invalidity based its request on Article 52(1)(a) and on Article 52(1)(b) of Council Regulation (EC) No 207/2009

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

Decision of the Board of Appeal: Annulled the contested decision and rejected the request for a declaration of invalidity

Pleas in law:

-    Infringement of Article 7(1)(b) of Council Regulation No 207/2009;

-    Infringement of Article 62 of the Community trade mark Regulation; and

-    Infringement of Article 52(1)(b) of Council Regulation No 207/2009.

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