Action brought on 16 December 2009 - Cybergun v OHIM - Umarex Sportwaffen (AK 47)

(Case T-503/09)

Language in which the application was lodged: French

Parties

Applicant: Cybergun (Bondoufle, France) (represented by: S. Guyot, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Umarex Sportwaffen GmbH & Co KG (Arnsberg, Germany).

Form of order sought

Annul the decision of the First Board of Appeal of OHIM of 8 October 2009 in so far as it declared the mark AK 47 invalid;

in accordance with Articles 87(2) and 92 of the Rules of Procedure, order OHIM to pay the costs including the costs incurred by the applicant for the purposes of the present procedure, in particular the costs associated with the translation of documents, lawyer's fees, and, in so far as necessary, travel and hotel costs; the Court is asked to assess that sum at EUR 20 000

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: word mark 'AK 47' for goods and services in Classes 9, 28 and 38 (Community trade mark No 3 249 381)

Proprietor of the Community trade mark: Cybergun

Applicant for the declaration of invalidity: Umarex Sportwaffen GmbH & Co KG

Decision of the Cancellation Division: Rejection of the application for a declaration of invalidity of the trade mark at issue

Decision of the Board of Appeal: Annulment of the decision of the Cancellation Division and declaration of invalidity of the Community trade mark

Pleas in law: Infringement of Article 7(1) of Regulation (EC) No 40/94 [now Article 8(1) of Regulation (EC) No 207/2009] and Article 51(1) of Regulation No 40/94 [now Article 52(1)(b) of Regulation (EC) No 207/2009]

____________