Action brought on 11 November 2008 - Atlas Transport v OHIM - Hartmann (ATLAS TRANSPORT)

(Case T-482/08)

Language in which the application was lodged: German

Parties

Applicant: Atlas Transport GmbH (Düsseldorf, Germany) (represented by: U. Hildebrandt, K. Schmidt-Hern and B. Weichhaus, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Alfred Hartmann (Leer, Germany)

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) of 9 September 2008 (Case R 1858/2007-4); and

order the defendant 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: Word mark 'Atlas Transport' for transport operations (transport of goods) in Class 39 (Community trade mark No 545 681).

Proprietor of the Community trade mark: The applicant.

Applicant for the declaration of invalidity: A. Hartmann.

Decision of the Cancellation Division: Dismissal of the application.

Decision of the Board of Appeal: Granting of the application for a declaration that the registration has lapsed.

Pleas in law: Breach of Article 15 and Rules 22 and 40 of Regulation (EC) No 2868/95, ¹ in so far as an incorrect standard was applied to the proof of use preserving the rights held and as evidence submitted was incorrectly assessed; breach of the procedural requirements of the right to a hearing in accordance with [Rule] 73(2) of Regulation (EC) No 2868/95 and of the duty to give reasons under [Rule] 73(1) of Regulation (EC) No 2868/95; incorrect assessment.

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¹ - Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).