Action brought on 3 January 2012 - Kreyenberg v OHIM - Commission (MEMBER OF €e euro experts)

(Case T-3/12)

Language in which the application was lodged: German

Parties

Applicant: Heinrich Kreyenberg (Ratingen, Germany) (represented by: J. Krenzel, 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 Court should:

annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 5 October 2011 in Case R 1804/2010-2; 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: the figurative mark containing the word elements 'MEMBER OF €e euro experts' for goods and services in Classes 9, 16, 35, 36, 39, 41, 42, 44 and 45

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: Infringement of Article 52(1)(a) in conjunction with Article 7(1)(c) of Regulation No 207/2009 as there is an alleged danger that the public will be misled as regards the quality of the goods and services designated by the mark; infringement of Article 7(1)(h) of Regulation No 207/2009 as it is alleged that the mark contains a heraldic imitation of European flag No 3556 (circular number) deposited at WIPO pursuant to Article 6ter of the Paris Convention for the Protection of Industrial Property; and infringement of Article 7(1)(i) of Regulation No 207/2009 as it is alleged that the applicant's mark monopolises the '€' symbol which was determined graphically by the Communication from the European Commission COM (97) 418 final.

Decision of the Cancellation Division: the application for a declaration of invalidity was rejected

Decision of the Board of Appeal: the appeal was upheld

Pleas in law: Infringement of Article 7(1)(i) of Regulation No 207/2009 as there is no identical reproduction of the official '€' sign which is necessary for that article to apply; in the alternative, the conditions relating to the derogation in Article 6ter(1)(c) of the Paris Convention have in any event been met as the public would not assume that the applicant's figurative mark is connected with the European Monetary Union (or the European Union); in the alternative, infringement of Article 7(1)(c) and (g) of Regulation No 207/2009 as the European Commission expressly referred to Article 7(1)(c) in its application for a declaration of invalidity, with the result that it can only be assumed that there was an error in making the application and that its reliance on the ground for refusal in Article 7(1)(g) for the first time in the appeal proceedings must be regarded as belated and inadmissible.

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