Action brought on 19 March 2012 - FunFactory v OHIM (three-dimensional mark in the shape of a vibrator)

(Case T-137/12)

Language of the case: German

Parties

Applicant: FunFactory GmbH (Bremen, Germany) (represented by K.-D. Franzen, lawyer)

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

Form of order sought

The applicant claims that the Court should:

annul the contested decision (R 1436/2011-4) of the Fourth Board of Appeal of OHIM of 19 January 2012;

order OHIM to pay the costs of the proceedings, including those incurred in the proceedings before the Board of Appeal.

Pleas in law and main arguments

Community trade mark concerned: three-dimensional mark in the shape of a vibrator (application No 9 390 691) for goods in Class 10

Decision of the Examiner: refusal to register

Decision of the Board of Appeal: dismissal of the appeal

Pleas in law: incorrect interpretation and application of Article 7(1)(b) of Regulation No 207/2009, since the mark applied for is distinctive and is not descriptive of the goods in respect of which registration is sought. Infringement of the duty to state reasons laid down in Article 73(1) of Regulation No 207/2009 and of the right to be heard.

____________