Action brought on 4 December 2009 - Jager & Polacek v OHIM- RT Mediasolutions (REDTUBE)
(Case T -488/09)
Language in which the application was lodged: German
Parties
Applicant: Jager & Polacek GmbH (Vienna, Austria) (represented by: A. Renck, V. von Bomhard, T. Dolde, lawyers)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Other party/parties to the proceedings before the Board of Appeal of OHIM: RT Mediasolutions s.r.o. (Brno, Czech Republic)
Form of order sought
- Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) No R 442/2009-4 of 29 September 2009;
- order OHIM to pay the costs of the proceedings.
Pleas in law and main arguments
Applicant for a Community trade mark: RT Mediasolutions s.r.o
Community trade mark concerned: the word mark "REDTUBE" for goods and services in classes 9, 38 and 41 (Application No 6 096 309)
Proprietor of the mark or sign cited in the opposition proceedings: Jager & Polacek GmbH
Mark or sign cited in opposition: a non-registered trade mark "Redtube"
Decision of the Opposition Division: The notice of opposition is deemed not to have been entered
Decision of the Board of Appeal: Rejection of the appeal
Pleas in law:
Infringement of Article 8(2) of Regulation (EC) No 216/96
1 in conjunction with Article 63(2) of Regulation (EC) No 207/2009
2, since the applicant was not given an opportunity to submit a reply;
Infringement of Article 80(1) and (2) of Regulation No 207/2009, since the decision on the admissibility of the opposition had not been legally annulled.
Infringement of Article 83 of Regulation No 207/2009, and more particularly of the principle of legitimate expectations, in conjunction with Article 41(3) of the same Regulation, Rule 17(1) of Regulation (EC) No 2868/95
3 und Article 8(3)(a) and (b) of Regulation (EC) No 2869/95
4, since the applicant entertained reasonable expectations that the delay in lodging the opposition fee was remedied by the paymentwithin the prescribed time limit of the additional payment.