Judgments nº T-27/09 of The General Court, December 10, 2009

• Resolution Date: December 10, 2009
• Issuing Organization: The General Court
• Decision Number: T-27/09

In Case T‑27/09,

Stella Kunststofftechnik GmbH, established in Eltville (Germany), represented by M. Beckensträter, lawyer,

applicant,

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by A. Führer and G. Schneider, acting as Agents,

defendant,

the other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court, being

Stella Pack S.A., established in Lubartów (Poland), represented by O. Bischof, lawyer,

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 13 November 2008 (Case R 693/2008‑4) concerning revocation proceedings between Stella Kunststofftechnik GmbH and Stella Pack sp. z o.o.,

THE GENERAL COURT (Fifth Chamber),

composed of M. Vilaras (Rapporteur), President, M. Prek and V. M. Ciucă, Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Registry of the Court on 19 January 2009,

having regard to the response of OHIM lodged at the Registry of the Court on 30 April 2009,

having regard to the response of the intervener lodged at the Registry of the Court on 17 April 2009,

having regard to the fact that no application for a hearing was submitted by the parties within the period of one month from notification of closure of the written procedure, and having therefore decided, acting upon a report of the Judge-Rapporteur to give a ruling without an oral procedure pursuant to Article 135a of the Rules of Procedure of the Court,

gives the following

Judgment

Background

1 On 29 February 1996 the applicant, Stella Kunststofftechnik GmbH, filed an application for a Community trade mark at the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) pursuant to Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)). After rectification, the filing date was fixed as 22 July 1996, under Article 27 of Regulation No 40/94 (now Article 27 of Regulation No 207/2009) and Rule 9 of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Regulation No 40/94 (OJ 1995 L 303, p. 1).

2 The mark for which registration was sought is the word sign Stella.

3 The goods in respect of which registration was sought are in Classes 6, 8, 16, 20 and 21, of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond, for each of those classes, to the following description:

– Class 6: ‘Goods of metal, included in Class 6, especially containers, bottles, packings and closures and foils for wrapping and packaging, container and bottle closures, sealing caps, metal caps, tins and receptacles’;

– Class 8:’Hand tools and implements (hand-operated), especially hand-operated lever presses’;

– Class 16:’Paper, cardboard and goods of these materials, included in Class 16, especially containers and packings; packing material of plastic, included in Class 16, containers and packings of paper and plastic as well as of cardboard and plastic’;

– Class 20: ‘Goods, included in Class 20, of plastic, bottles, containers, packings and closures, closures for bottles and containers, sealing caps’;

– Class 21:’Containers and bottles of glass, of plastic and/or of a combination of glass and plastic’.

4 The mark was registered on 19 September 2001 as a Community trade mark (‘the mark at issue’).

5 On 11 May 2004 the intervener, Stella Pack S.A. (formerly Stella Pack sp. z o.o.), filed an application for a Community trade mark at OHIM under Regulation No 40/94.

6 The mark for which registration was sought is the figurative mark containing the element ‘stella pack’.

7 The goods in respect of which registration was sought are in Classes 4, 6, 16, 20 and 21 of the Nice Agreement and correspond to the following description:

– Class 4: ‘Candles’;

– Class 6: ‘Films of metal for reeling and packaging’;

– Class 16: ‘Films, large and small plastic bags for packaging (pouches or carrier bags); paper; large and small paper bags for packaging; rubbish bags of paper or plastic; paper coffee filters; paper table covers;

– Class 20: ‘Drinking straws of plastic’;

– Class 21: ‘Gloves for housework; gardening gloves; tableware of plastic, including mugs, plates, bowls; plastic cutlery; coffee filters (non-electric); toothpicks; skewers; stirrers; cups for ices (including specially moulded cups); clothes pegs; cloths, rags; sponges; mops’.

8 On 27 June 2005, the applicant filed a notice of opposition under Article 42(1) of Regulation No 40/94 (now Article 41(1) of Regulation No 207/2009) against registration of the figurative mark applied for by the intervener.

9 The opposition, based on the mark at issue, was against the registration of the mark applied for by the intervener in respect of goods in Classes 6, 16 and 21 of the Nice Agreement:

– Class 6: ‘Films of metal for reeling and packaging’;

– Class 16: all goods falling within this class apart from ‘paper table covers’;

– Class 21: ‘tableware of plastic, including mugs, plates, bowls; coffee filters, plastic cutlery, skewers, stirrers, cups for ices’.

10 On 22 December 2006, the intervener filed an application at OHIM pursuant to Articles 50(1)(a) and 55(1)(a) of Regulation No 40/94 (now Articles 51(1)(a) and 56(1)(a) of Regulation No 207/2009) for revocation of the mark at issue.

11 On 27 February 2008 the Cancellation Division, finding that the...