Action brought on 6 October 2008 - Coverpla v OHIM - Heinz-Glas (design)

(Case T-450/08)

Language in which the application was lodged: French

Parties

Applicant: Coverpla (Nice, France) (represented by: P. Greffe and M. Chaminade, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Heinz-Glas GmbH (Kleintettau, Germany)

Form of order sought

Annul the decision of the Third Board of Appeal of 7 July 2008 (Case R 1411/2007-3) in so far as it dismissed the applicant's appeal and declared the Community design 'Tour' No 29178-0002 invalid;

declare Community design 'Tour' No 29178-0002 in class 09-01 valid.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Community design No 29178/0002 for 'phials'

Proprietor of the Community design: The applicant

Applicant for the declaration of invalidity: Heinz-Glas GmbH

Trade mark right of applicant for the declaration: An unregistered phial named 'Empire' (reference number F 3990)

Decision of the Cancellation Division: Declaration of invalidity of the Community design

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: The Community design does have the requisite novelty; the documents which Heinz-Glas GmbH submitted to show that it disclosed to the public a prior design of an identical phial have no evidential value.

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