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Case T-313/11: Action brought on 16 June 2011 — Heede v OHIM (Matrix-Energetics)
ECLI:EU:UNKNOWN:62011TN0313
62011TN0313
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Official Journal of the European Union
C 238/32
(Case T-313/11)
2011/C 238/54
Language of the case: German
Parties
Applicant: Günter Heede (Walldorf-Baden, Germany) (represented by R. Utz, lawyer)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Form of order sought
The applicant claims that the Court should:
—Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 8 April 2011 in Case R 1848/2010-4;
—Order the defendant to pay the costs.
Pleas in law and main arguments
Community trade mark concerned: the word mark ‘Matrix-Energetics’ for services in Classes 35, 41 and 44 — application No 8 339 798
Decision of the Examiner: Rejection 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 No 207/2009 as the descriptive character of the mark applied for cannot be determined and the mark applied for has the necessary distinctive character; the Board of Appeal erred in making print-outs from the internet, which dated from after the date of filing of the application for registration, the subject-matter of its decision; and furthermore isolated, illegal instances of use of an originally distinctive (fanciful) description on the part of third parties, which commenced after the date of filing, cannot have a negative influence on the registrability of a Community trade mark.