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Case T-316/09: Action brought on 11 August 2009 — Google v OHIM (ANDROID)
ECLI:EU:UNKNOWN:62009TN0316
62009TN0316
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Valentina R., lawyer
10.10.2009
EN
Official Journal of the European Union
C 244/15
(Case T-316/09)
2009/C 244/25
Language of the case: English
Parties
Applicant(s): Google, Inc. (Mountain View, United States) (represented by A. Bognár and M. Kinkeldey, lawyers)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
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 26 May 2009 in case R 1622/2008-2; and
—Order the defendant to pay the costs of the proceedings.
Auxiliarily, the applicant requests to:
—Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 26 May 2009 in case R 1622/2008-2 with regard to the goods ‘computer hardware and computer software for use in connection with mobile devices, namely cell phones, mobile phones, smart phones and handheld personal digital assistants (PDAs)’; and
—Order the defendant to pay the costs of the proceedings insofar.
Auxiliarily, the applicant requests to:
—Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 26 May 2009 in case R 1622/2008-2 and remit the case to OHIM for further examination of the list of goods ‘computer hardware and computer software for use in connection with mobile devices, namely cell phones, mobile phones, smart phones and handheld personal digital assistants (PDAs)’.
Pleas in law and main arguments
Community trade mark concerned: The word mark ‘ANDROID’ for goods in class 9
Decision of the examiner: Refused the application for a Community trade mark
Decision of the Board of Appeal: Dismissed the appeal
Pleas in law: Infringement of Article 7(1)(c) of Council Regulation 207/2009 as the Board of Appeal wrongly concluded that the trade mark applied for was descriptive for the goods at issue and thus could not be registered; infringement of Article 7(1)(b) of Council Regulation 207/2009 as the Board of Appeal erred by not proceeding to examine the perception of the English speaking public with respect to the applicability of this provision.