Action brought on 13 May 2009 - Longevity Health Products v OHIM - Performing Science (5 HTP)

(Case T-190/09)

Language in which the application was lodged: German

Parties

Applicant: Longevity Health Products, Inc (represented by: J. Korab, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Performing Science LLC

Forms of order sought

Declare the appeal of Longevity Health Products, Inc admissible,

Annul the decision of the Fourth Board of Appeal of 21 April 2009 and dismiss the application by Performing Science LLC that Community trade mark No 002846483 - '5 HTP' be declared invalid, and

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

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: the word mark '5 HTP' for goods and services in Classes 5, 16 and 35 (Community trade mark No 2 846 483).

Proprietor of the Community trade mark: Longevity Health Products, Inc.

Applicant for the declaration of invalidity: Performing Science LLC.

Decision of the Cancellation Division: Application for declaration of invalidity of the trade mark concerned partially granted.

Decision of the Board of Appeal: Dismissal of the applicant's appeal.

Pleas in law: Infringement of Article 7(1)(d) of Regulation (EC) No 40/94 (now Article 7(1)(d) of Regulation (EC) No 207/2009 ¹.

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¹ - Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).