Action brought on 26 May 2010 - Vuitton Malletier v OHMI - Friis Group International (Representation of a lock device)

(Case T-237/10)

Language in which the application was lodged: English

Parties

Applicant: Louis Vuitton Malletier SA (Paris, France) (represented by: P. Roncaglia, G. Lazzeretti, M. Boletto and E. Gavuzzi, lawyers)

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

Other party to the proceedings before the Board of Appeal: Friis Group International ApS (Copenhagen, Denmark)

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 24 February 2010 in case R 1590/2008-1, in so far as it declared the invalidity of Community trade mark No 3693116 for the goods in classes 9, 14 and 18;

Order the defendant to pay the costs of the proceedings; and

Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal and the Cancellation Division, should it become an intervening party in this case.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: A figurative mark representing a lock device for goods in classes 9, 14, 18 and 25 - Community trade mark application No 3693116

Proprietor of the Community trade mark: The applicant

Party requesting the declaration of invalidity of the Community trade mark: The other party to the proceedings before the Board of Appeal

Trade mark right of the party requesting the declaration of invalidity: The party requesting the declaration of invalidity grounded its request on absolute grounds for refusal pursuant to Article 52(1)(a) of Council Regulation (EC) No 207/2009

Decision of the Cancellation Division: Rejected the application for declaration of invalidity of the Community trade mark

Decision of the Board of Appeal: Upheld the appeal partially

Pleas in law: The applicant advances two pleas in law in support of its application.

On the basis of its first plea, the applicant claims that the contested decision infringes Article 7(1)(b) of Council Regulation (EC) No 207/2009, as the Board of Appeal erred in concluding that the provision of this article is applicable to the contested Community trade mark with respect to the goods in classes 9, 14 and 18. In particular, the Board of Appeal: (i) wrongly addressed the issue of the distinctiveness of the contested Community trade mark as if it were a mark consisting of the shape of the goods covered, and (ii) erroneously found lack of inherent distinctiveness.

By its second plea, the applicant considers that the contested decision violates Article 52(2) of Council Regulation (EC) No 207/2009, as the Board of Appeal erred in concluding that the provision of this article does not apply in the present case.

____________