Action brought on 19 October 2008 - Imagion v OHIM (DYNAMIC HD)

(Case T-463/08)

Language of the case: German

Parties

Applicant: Imagion AG (Trierweiler, Germany) (represented by: H. Blatzheim, lawyer)

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

Form of order sought

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 13 August 2008 (Case R 488/2008-4); and

Order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Word mark 'DYNAMIC HD' for services in Classes 35, 38, 41, 42 and 45 (No 6 092 241)

Decision of the Examiner: Refusal, in part, of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law:

-    Infringement of Article 7(1)(b) and (c) of Regulation (EC) No 40/94¹ in that the word mark 'DYNAMIC HD' is neither descriptive, nor does it lack the necessary distinctive character;

-    Infringement of Article 7(3) of Regulation No 40/94 in that the trade mark applied for has acquired distinctive character through use;

-    Breach of the duty to state reasons;

-    Breach of the principle of equal treatment.

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¹ - Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).