Action brought on 29 July 2009 - Gühring OHG v OHIM (combination of the colours ochre yellow and silver grey)

(Case T-300/09)

Language in which the application was lodged: German

Parties

Applicant:    Gühring OHG (Albstadt, Germany) (represented by: A. von Mühlendahl and H. Hartwig, lawyers)

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

Form of order sought

-    Annul the decision of the First Board of Appeal of OHIM of 30. April 2009 in Case R 1329/2008-1;

-    Annul the decision of the defendant's Examination Division dated 22 July 2008, in which it refused registration of the applicant's mark Nr. 6 703 565;

-    Declare, that the trade mark applied for No. 6 703 565 complies with the conditions laid down in Article 7(1)(b) of Regulation (EC) No 207/2009¹;

in the alternative,

-    Annul the decision of the First Board of Appeal of OHIM of 30. April 2009 in Case R 1329/2008-1;

-    Order the defendant to pay the costs, including those incurred by the applicant before the Board of Appeal.

Pleas in law and main arguments

Community trade mark concerned: a mark made up of the combination of the colours of ochre yellow and silver grey for goods in Class 7 (registration application No. 6 703 565)

Decision of the Examiner: Refusal of the application

Decision of the Board of Appeal: Rejection of the appeal

Pleas in law: Infringement of Article 7(1)(b) of Regulation No 207/2009 because the trade mark applied for has a distinctive character. In addition, infringement of procedural law, in particular of Articles 75 and 76 (1) of Regulation No 207/2009

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¹ - Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)