Action brought on 27 July 2009 - Carrols v OHIM - Gambettola (Pollo Tropical CHICKEN ON THE GRILL)

(Case T-291/09)

Language in which the application was lodged: Spanish

Parties

Applicant: Carrols Corp. (New York, United States) (represented by: I. Temiño Ceniceros, lawyer)

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

Other party to the proceedings before the Board of Appeal: Giulio Gambettola (Los Realejos, Spain)

Form of order sought

declare the present action and its annexes admissible;

annul the decision of the Board of Appeal in so far as it relates to the grounds for invalidity under Article 52(1)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009;

order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Figurative mark containing the word element 'Pollo Tropical CHICKEN ON THE GRILL' (Application No. 002938801) for goods and services in Classes 25, 41 and 43.

Proprietor of the Community trade mark: Giulio Gambettola.

Applicant for the declaration of invalidity: The applicant.

Trade mark right of applicant for the declaration: National figurative mark (No 2.201.552) containing the word element 'Pollo Tropical CHICKEN ON THE GRILL' and the national word mark 'POLLO TROPICAL' (No 2.201.543) for services in Class 43 ('restaurant services').

Decision of the Cancellation Division: Application for a declaration of invalidity dismissed.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Misinterpretation of Articles 52(1)(b) and 53(1)(a) of Regulation (EC) No 207/2009 on the Community trade mark.

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