Official Journal of the European Union

C 312/37

(Case T-419/09)

2009/C 312/60

Language in which the application was lodged: French

Parties

Applicant: Cybergun (Bondoufle, France) (represented by: S. Guyot, 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: Umarex Sportwaffen GmbH & Co. KG (Arnsberg, Germany)

Form of order sought

—annul the decision of the First Board of Appeal of OHIM of 5 August 2009 declaring the mark AK 47 to be invalid because of its descriptive character on the basis of Article 51(1)(a), a legal basis not referred to in the action,

—order, in accordance with Articles 87(2) and 91 of the Rules of Procedure, OHIM to pay the costs, including costs incurred by the applicant for the present proceedings, in particular the costs of translation of documents, lawyer’s fees, and, if costs of travel and accommodation are appropriate; the Court is asked to assess that sum at EUR 20 000.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: ‘AK 47’ for goods in Class 28 — Community trade mark No 4 528 378.

Proprietor of the Community trade mark: the applicant

Applicant for the declaration of invalidity: Umarex Sportwaffen GmbH & Co. KommanditGesellschaft

Decision of the Cancellation Division: rejection of the application for a declaration of invalidity of the mark concerned

Decision of the Board of Appeal: annulment of the decision of the Cancellation Division and declaration of invalidity of the Community trade mark

Pleas in law:

The legal basis, namely Article 51(1)(a) of Regulation (EC) No 40/94 [now article 52(1) (a) of Regulation (EC) No 207/2009] on which the annulment of the mark was founded because of its descriptive character, was never referred to in the pleadings before the First Board of Appeal and in any event the assessment of the descriptive character of the mark is incorrect.