Action brought on 9 July 2013 – Menelaus/OHIM – Garcia Mahiques (VIGOR)

(Case T-361/13)

Language in which the application was lodged: English

Parties

Applicant: Menelaus BV (Amsterdam, Netherlands) (represented by: A. von Mühlendahl and H. Hartwig, lawyers)

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

Other party to the proceedings before the Board of Appeal: V. Garcia Mahiques (Jesus Pobre, Spain), F. Garcia Mahiques (Jesus Pobre, Spain)

Form of order sought

The applicant claims that the Court should:

Annul the decision of defendant’s Second Board of Appeal of 23 April 2013, in Case R 88/2012-2, to the extent that it annulled the decision of the Office’s Cancellation Division of 11 November 2011 in Case 5061;

Dissmiss the appeal of the other party against the decision of the Cancellation Division of 10 November 2011 in Case C 5061;

Order the defendant to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal

In case the other party intervenes in this case, order Mr Vicente Garcia Mathiques and Mr Felipe Garcia Mahiques to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark “VIGOR”− Community trade mark registration No 4 386 371Proprietor of the Community trade mark: The applicant Applicant for the declaration of invalidity of the Community t

November 2011 in Case 5061;Dissmiss the appeal of the

other party against the decision of the Cancellation Division of 10 November 2011 in Case C 5061;Order the defendant to pay the costs

Decision of the Board of Appeal: Upheld the appeal in part and annulled the contested decision to the extent that it rejected the application for invalidity as regards certain goods in class 21 and dismissed the appeal for the remainderPleas in l

aw: Infringement of Rules 22(4) and Rules 79 to 82 of Commission Regulation

No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (CTMIR); Article 57(2) CTMR in conjunction with Article 15 (1)(a) CTMR; Article 57(2) CTMR in conjunction with Article 15(1)(a) CTMR

and Article 75 CTMR; Article 56(1)(b) in conjunction with Article 41(1) CTMR; and Article 57(2) and (3) and Article 76(2) in conjunction with Rules 40 and 22 CTMR.