Action brought on 9 February 2010 - Geemarc Telecom v OHIM - Audioline (AMPLIDECT)

(Case T-59/10)

Language in which the application was lodged: English

Parties

Applicant: Geemarc Telecom International Ltd (Wanchai, Hong Kong) (represented by: G. Farrington, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Audioline GmbH (Neuss, Germany)

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 20 November 2009 in case R 913/2009-2; and

Order the defendant and the other party to the proceedings before the Board of Appeal to pay their own costs and those of the applicant.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The word mark "AMPLIDECT" for goods in classes 9 and 16

Proprietor of the Community trade mark: The applicant

Party requesting the declaration of invalidity of the Community trade mark: The other party to the proceedings before the Board of Appeal

Decision of the Cancellation Division: Rejected the request for a declaration of invalidity

Decision of the Board of Appeal: Granted the appeal and, as a result, cancelled the registered Community trade mark subject of the application for a declaration of invalidity

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation 207/2009, as the Board of Appeal: (i) failed to take into account that the other party to the proceedings before the Board of Appeal had failed to adduce evidence of lack of distinctive character of the registered Community trade mark subject of the application for a declaration of invalidity; and (ii) failed to take into account that the registered Community trade mark subject of the application for a declaration of invalidity has acquired an enhanced distinctiveness through the level of use made of it; the Board of Appeal failed to restrict itself to an examination of the evidence and arguments provided by the parties within the time line set by the Board of Appeal.

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