Action brought on 9 January 2007 - Grupo Promer Mon-Graphic v OHIM - PepsiCo (Designs)

(Case T-9/07)

Language in which the application was lodged: English

Parties

Applicant: Grupo Promer Mon-Graphic, SA (Sabadell, Spain) (represented by: R. Almaraz Palmero, lawyer)

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

Other party to the proceedings before the Board of Appeal: PepsiCo, Inc. (New York, USA)

Form of order sought

Annulment of the decision of the Third Board of Appeal at OHIM of 27 October 2006 in Case R 1001/2005-3;

order the Office for the Harmonisation in the Internal Market (OHIM) and the intervening party, Pepsico Inc., to pay all the costs of the dispute before the Court of First Instance, including those relating to the procedure before the Third Board of Appeal.

Pleas in law and main arguments

Registered Community design subject of the application for a declaration of invalidity: Registered Community design for 'promotional item[s] for games' - Community Design No 74463-1

Proprietor of the Community design: PepsiCo, Inc.

Party requesting the declaration of invalidity of the Community design: The applicant

Design of the party requesting the declaration of invalidity: Registered Community design for 'metal plate[s] for games' - Community Design No 53186-1

Decision of the Invalidity Division: Declaration of invalidity of the Community design

Decision of the Board of Appeal: Annulment of the Invalidity Division's decision and dismissal of the application for a declaration of invalidity of the registered Community design

Pleas in law: The contested Community Design No 74463-1 lacks novelty and individual character compared to the registered Community Design No 53186-1, which has claimed priority of an earlier Spanish design.

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