Asunto T-458/05: Recurso interpuesto el 30 de diciembre de 2005 — Tegometall International/OAMI

• Jurisdiction: European Union
• Published date: 11 March 2006
• Celex Number: C2006/060/87

11.3.2006 EN Official Journal of the European Union C 60/46

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Action brought on 30 December 2005 — Tegometall International v OHIM

(Case T-458/05)

(2006/C 60/87)

Language in which the application was lodged: German

Parties

Applicant: Tegometall International AG (Lengwil, Switzerland) (represented by: H. Timmann, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Wupperman AG (Leverkusen, Germany)

Form of order sought

The applicant claims that the Court should:

— alter the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market of 21 October 2005 in Case R 1063/2004-2, served on 2 November 2005, as amended by Corrigendum of 16 November 2005, served on 23 November 2005, and dismiss the application for declaration of invalidity of Community trade mark No 1 227 743 of 23 July 2003;

— in the alternative, annul that decision and refer the case back to the Second Board of Appeal for further deliberation;

— order the applicant in the invalidity proceedings to pay the costs of the proceedings before the Cancellation Division and the Board of Appeal and of the present action.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark TEK for goods in Classes 6 and 20 (shelves and parts of shelves, in particular hanging baskets for shelves, all the aforesaid goods of metal or not of wood) — Community trade mark No 1 227 743

Proprietor of the Community trade mark: The applicant

Applicant for the declaration of invalidity: Wupperman AG

Decision of the Cancellation Division: Dismissal of the application for declaration of invalidity

Decision of the Board of Appeal: Annulment of the decision of the Cancellation Division

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation No 40/94, since the facts found by the Board of Appeal do not justify cancellation of the mark. In addition, the Board of Appeal has infringed the applicant's right to a fair hearing.

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