18.4.2009

EN

Official Journal of the European Union

C 90/35

(Case T-83/09)

2009/C 90/54

Language in which the application was lodged: English

Parties

Applicant: David Chalk (Canterbury, United Kingdom) (represented by: C. Balme, W. James and M. Gilbert Solicitors and S. Malynicz, Barrister)

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

Other party to the proceedings before the Board of Appeal: Reformed Spirits Company Holdings Ltd (St Helier, Jersey)

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 13 November 2008 in case R 1888/2007-2;

—Remove the other party to the proceedings before the Board of Appeal from OHIM’s register and allow the registration of the applicant as the proprietor of Community trade mark No 2 245 306 pursuant to the assignment from Arthur Crack Limited to the applicant dated 21 January 2006; In the alternative, remit the case to the Board of Appeal of OHIM for consideration in the light of the Court’s findings;

—Order OHIM, and to the extent it intervenes in these proceedings the other party to the proceedings before the Board of Appeal, to pay the costs, including those of these proceedings and the proceedings before the Board of Appeal.

Pleas in law and main arguments

Registered Community trade mark subject of the application for revocation of the recordal of the transfer: The word mark ‘CRAIC’ for goods in classes 25, 32 and 33

Proprietor of the Community trade mark: The other party to the proceedings before the Board of Appeal

Party requesting the revocation of the recordal of the transfer: The applicant

Decision of the examiner: Refusal to revoke the decision concerning the recordal of transfer

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law:

Firstly, infringement of Article 16(1) of Council Regulation 40/94 as the Board of Appeal failed to consider and apply the national laws of Member States (in this case, the United Kingdom) when making any decision based on a transfer of a Community trade mark;

Secondly, infringement of Rule 31 of Commission Regulation No 2868/95 as the Board of Appeal failed to consider the validity and effect of documents that are provided to it if the legal effect of those documents is challenged subsequently;

Thirdly, infringement of Article 77(a) of Council Regulation 40/94 as the Board of Appeal failed to consider previous decisions taken by OHIM in the light of further facts and evidence supplied to it;

Fourthly, infringement of Article 23 of Council Regulation 40/94 as the Board of Appeal wrongly rejected the applicant’s request to record the assignment of Community trade mark No 2 245 306;

Finally, the Board of Appeal wrongly refused to revoke the decision by which OHIM has recorded the other party to the proceedings before the Board of Appeal as proprietor of Community trade mark No 2 245 306, as well as when it held that Council Regulation 40/94 and Commission Regulation 2868/95 do not permit the OHIM to record the applicant as the registered proprietor of Community trade mark No 2 245 306.

Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).