Action brought on 20 June 2011 - Brainlab v OHIM (BrainLAB)

(Case T-326/11)

Language of the case: German

Parties

Applicant: Brainlab AG (Feldkirchen, Germany) (represented by J. Bauer, lawyer)

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

Form of order sought

The applicant claims that the Court should:

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 April 2011 in Case R 1596/2010-4;

Refer the case back to the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) for a decision on the question whether all due care was taken in respect of the renewal of the relevant Community trade mark BrainLAB, No 1 290 113;

Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the word mark BrainLAB for goods and services in Classes 9, 10 and 42

Decision of the department 'Register and associated databases': Dismissal of the application for restitutio in integrum as regards the time-limit for filing the request for renewal and paying the renewal fee

Decision of the Board of Appeal: Dismissal of the application for restitutio in integrum and finding that Community trade mark No 1 290 113 had expired

Pleas in law: Infringement of Article 81 of Regulation No 207/2009 as it was not possible for any of the parties, in spite of all due care required by the circumstances having been taken, to comply with a time-limit vis-à-vis the defendant, as a result of which the loss of a right occurred and the two-month time-limit for the filing of the application for restitutio in integrum was complied with.

____________