Action brought on 20 November 2008 - Toqueville v OHIM - Schiesaro (TOCQUEVILLE 13)

(Case T-510/08)

Language in which the application was lodged: Italian

Parties

Applicant: Toqueville Srl (Milan, Italy) (represented by: S. Bariatti, I. Palombella and E. Cucchiara, 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: Marco Schiesaro (Milan, Italy)

Form of order sought

Annul the decision of the Second Board of Appeal of OHIM of 26 August 2008 in Case R 829/2008-2 Toqueville Srl v M. Schiesaro.

Order the defendant 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: word mark 'TOCQUEVILLE 13' (Community trade mark No 1.406.982) to designate goods and services in Classes 25, 41 and 42.

Proprietor of the Community trade mark: the applicant.

Applicant for the declaration of invalidity: Marco Schiesaro.

Decision challenged before the Board of Appeal: the decision of the Cancellation Division to grant the application for partial revocation of the trade mark in question.

Decision of the Board of Appeal: declaration that the appeal is inadmissible and rejection of a request for restitutio in integrum as regards the time-limit for filing an appeal against the decision of the Cancellation Division.

Pleas in law: Infringement of Articles 73 and 78 if Regulation (EC) No 40/94 on the Community trade mark, Articles 2 and 9 of Regulation (EC) No 2869/95 on the fees payable to the Office for Harmonization in the Internal Market and Article 50 of Regulation (EC) No 2868/95 implementing Regulation (EC) No 40/94.

____________