Action brought on 16 February 2010 - Flaco Geräte v OHIM - Delgado Sánchez (FLACO)

(Case T-74/10)

Language in which the application was lodged: English

Parties

Applicant: Flaco Geräte GmbH (Gütersloh, Germany) (represented by: M. Wirtz, lawyer)

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

Other party to the proceedings before the Board of Appeal: Jesús Delgado Sánchez (Socuellamos, Spain)

Form of order sought

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 November 2009 in case R 86/2009-2; and

Order the defendant to bear the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark "FLACO", for goods in classes 7, 8, 9 and 11

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

Mark or sign cited: Spanish trade mark registration of the mark "FLACO", for goods in class 7

Decision of the Opposition Division: Partially rejected the application for the Community trade mark

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1) of Council Regulation No 207/2009 as the Board of Appeal wrongly took into account a wrong translation of the goods covered by the mark cited in the opposition proceedings; infringement of Article 42(2) and (3) of Council Regulation No 207/2009 as the Board of Appeal did not take into account the plea of non use filed by the applicant.

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