Action brought on 27 July 2011 - Welte-Wenu v OHIM - Commission

(Representation of a circle of 12 stars on a blue background)

(Case T-413/11)

Language in which the application was lodged: German

Parties

Applicant: Welte-Wenu GmbH (Neu-Ulm, Germany) (represented by: T Kahl, lawyer)

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

Other party to the proceedings before the Board of Appeal: European Commission

Form of order sought

The applicant claims that the General Court should:

annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 12.05.2011 - Case R 1590/2010;

reject the appeal of the European Union against the decision of the Cancellation Division on the application for a declaration of invalidity of the Community trade mark EDS EUROPEAN DRIVESHAFT SERVICES (and thereby that application itself);

order the European Union to pay the costs of the cancellation and appeal proceedings and the defendant to pay the costs of these proceedings.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Figurative mark containing a circle of 12 stars on a blue background for goods in Classes 7 and 12 - Community trade mark No 2 180 800

Proprietor of the Community trade mark: The applicant.

Applicant for the declaration of invalidity of the Community trade mark: European Commission.

Grounds for the application for a declaration of invalidity: The registration of the Community trade mark was contrary to Article 7 of Regulation No 207/2009.

Decision of the Cancellation Division: Rejection of the application for a declaration of invalidity of the Community trade mark at issue.

Decision of the Board of Appeal: Upholding of the appeal and cancellation of the Community trade mark at issue.

Pleas in law: Infringement of Article 7(1)(g)(h) and (i) and Articles 55 and 76 of Regulation No 207/2009, Article 6ter(1)(c) of the Paris Convention and Rule 37(b)(iv) of Regulation No 2868/95, since the registration of the Community trade mark was not contrary to the provisions of Article 7 of Regulation No 207/2009.

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