Action brought on 6 July 2009 - Defense Technology v OHIM - DEF-TEC Defense Technology (FIRST DEFENSE AEROSOL PEPPER PROJECTOR)

(Case T-262/09)

Language in which the application was lodged: English

Parties

Applicants: Defense Technology Corporation of America (Jacksonville, United States) (represented by: R. Kunze, lawyer and Solicitor)

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

Other party to the proceedings before the Board of Appeal: DEF-TEC Defense Technology GmbH (Frankfurt/Main, Germany)

Form of order sought

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 May 2009 in case R 493/2002-4 (II); and

Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark "FIRST DEFENSE AEROSOL PEPPER PROJECTOR", for goods in classes 5, 8 and 13 - application No 643 668

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

Mark or sign cited: United States trade mark registration for the word mark "FIRST DEFENSE" for goods in class 13; Two United States trade mark registrations of figurative marks for goods in class 13; An earlier well-known mark in Belgium, Germany and France "FIRST DEFENSE"; An earlier well-known mark in Belgium, Germany and France "FIRST DEFENSE AND DESIGN"; An earlier non-registered work mark "FIRST DEFENSE" protected in Germany and France; An earlier non-registered mark in Belgium, Germany and France "FIRST DEFENSE AND DESIGN"; A trade name "FIRST DEFENSE", protected in Germany

Decision of the Opposition Division: Partially upheld the opposition

Decision of the Board of Appeal: Annulled the decision of the Opposition Division and rejected the opposition

Pleas in law: Infringement of Article 8(3) of Council Regulation 207/2009 as the Board of Appeal did not properly apply the said provision and, moreover, wrongly rendered a decision based on a flawed understanding of the facts presented; Infringement of Articles 65, 75 and 76 of Council Regulation 207/2009 as the Board of Appeal failed to take the necessary measures to comply with the judgment of the Court of First Instance of 6 September 2006 in case T-6/05 DEF-TEC Defense Technology v OHIM - Defense Technology (FIRST DEFENSE AEROSOL PEPPER PROJECTOR)

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