Action brought on 14 June 2011 - Leopardi Dittajuti v OHIM - Llopart Vilarós (CONTE LEOPARDI DITTAJUTI)

(Case T-303/11)

Language in which the application was lodged: English

Parties

Applicant: Piervittorio Francesco Leopardi Dittajuti (Numana, Italy) (represented by: D. De Simone, D. Demarinis, and G. Orsoni, lawyers)

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

Other party to the proceedings before the Board of Appeal: Pedro Llopart Vilarós (Sant Sadurní D'Anoia, 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 6 April 2011 in case R 1437/2010-2, and consequently require the Office to take the necessary measures to comply with the given judgment; and

Order the defendant to pay the costs of all instances of proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark "CONTE LEOPARDI DITTAJUTI", for goods and services in classes 33, 35, 40, and 43 - Community trade mark application No 6428338

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 in opposition: Spanish trade mark registration No 2073540 of the figurative mark "Leopardi", for goods in class 33

Decision of the Opposition Division: Upheld the opposition for part of the contested goods and services

Decision of the Board of Appeal: Rejected the appeal as inadmissible

Pleas in law: Misinterpretation of article 60 of Council Regulation No 207/2009, of Rules 49(1), 20(7)(c) of Commission Regulation (EC) No 2868/95, applicable to the appeal proceedings pursuant to Rule 50(1) of Commission Regulation (EC) No 2868/95, as the Board of Appeal: (i) incorrectly deemed not to grant a suspension of the proceedings and postponing the deadline as jointly requested by the parties; (ii) incorrectly took into account the parties' joint request only after the lapse of the deadline of submission of the statement of grounds, thus factually keeping the concerned party from submitting the same within the due date and causing the time-limit to expire; and (iii) infringement of the procedural requirements by the Board of Appeal, as it did not take into account the grounds of appeal, although the relevant statements had been submitted beyond the time-limit, also in breach of the general principle of procedural economy and of preservation of the validity of case-file records.

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