Action brought on 14 June 2011 - Süd-Chemie v OHIM - BYK-Cera (CERATIX)

(Case T-312/11)

Language in which the application was lodged: German

Parties

Applicant: Süd-Chemie AG (Munich, Germany) (represented by: W. Baron von der Osten-Sacken and A. Wenninger-Lenz, lawyers)

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

Other party to the proceedings before the Board of Appeal: BYK-Cera BV (Deventer, Netherlands)

Form of order sought

The applicant claims that the Court should:

Annul the contested decision of the Fourth Board of Appeal of OHIM of 8 April 2011 (Case R 1585/2010-4);

Order the Office for Harmonisation in the Internal Market to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: BYK-Cera BV

Community trade mark concerned: the word mark 'CERATIX' for goods in Class 1 - application No 6 358 832

Proprietor of the mark or sign cited in the opposition proceedings: the applicant

Mark or sign cited in opposition: the national word mark 'CERATOFIX' for goods in Class 1

Decision of the Opposition Division: the opposition was upheld

Decision of the Board of Appeal: the Opposition Division's decision was annulled and the opposition was rejected

Pleas in law: Infringement of Article 15 and Article 42(2) and (3) of Regulation No 207/2009 as the defendant:

Erred in reducing the evidential value of the documents submitted by the applicant with the general reasoning that they are connected with the applicant itself;

Did not take account of promotional measures as 'genuine use';

Did not include all the relevant circumstances in assessing whether the use of the trade mark was genuine and;

Did not examine the evidence of use provided as a whole.

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