Action brought on 11 March 2011 - TMS Trademark-Schutzrechtsverwertungsgesellschaft v OHIM

(Case T-152/11)

Language in which the application was lodged: German

Parties

Applicant: TMS Trademark-Schutzrechtsverwertungsgesellschaft mbH (Düsseldorf, Germany) (represented by: B. Hein and M.-H. Hoffmann, lawyers)

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

Other party to the proceedings before the Board of Appeal: Comercial Jacinto Parera, SA (Barcelona, Spain)

Form of order sought

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 16 December 2010 in Case R 449/2009-2;

Order the defendant to pay the costs, including those incurred during the proceedings before the Board of Appeal.

Pleas in law and main arguments

Registered Community trade mark in respect of which an application for revocation has been made: Figurative mark 'MAD' for goods in Class 25.

Proprietor of the Community trade mark: Comercial Jacinto Parera, SA.

Party applying for revocation of the Community trade mark: The applicant.

Decision of the Cancellation Division: Rejection in part of the claim.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Infringement of Article 15 and Article 51 of Regulation (EC) No 207/2009 ¹ and of Rule 22 of Regulation (EC) No 2968/95, ² in that the Board of Appeal should not have reached the conclusion on the basis of the documents submitted as proof of use that the figurative mark 'MAD' is in genuine use for 'items of clothing'.

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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).

² - Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).