(Case T-513/09)

Community design – Invalidity proceedings – Registered Community design representing a seated figure – Earlier Community figurative mark – Ground for invalidity – Individual character – Different overall impression – Article 6 and Article 25(1)(b) of Regulation (EC) No 6/2002

Community design – Ground for invalidity – No individual character – Comparison between the overall impression produced by the contested design and that produced by the previous design (Council Regulation No 6/2002, Arts 6(1) and 25(1)(b)) (see paras 21-26)

Re:

ACTION brought against the decision of the Third Board of Appeal of OHIM of 14 October 2009 (Case R 1323/2008-3), relating to invalidity proceedings between Herbert Neuman and Andoni Galdeano del Sel, on the one hand, and José Manuel Baena Grupo, SA, on the other.

Information relating to the case

Registered Community design in respect of which a declaration of invalidity has been sought:

Community registered design No 000426895‑0002 for the following goods: ‘ornamentation for T-shirts, ornamentation for caps, ornamentation for stickers, ornamentation for printed material including advertising material’

Proprietor of the Community trade mark:

Applicants for the declaration of invalidity:

Herbert Neuman and Andoni Galdeano del Sel

Trade mark right of applicant for the declaration:

Figurative Community mark No 1312651 for goods in Classes 25, 28 and 32 of the Nice Classification

Decision of the Cancellation Division of the Designs Department:

Application upheld; design declared invalid

Decision of the Board of Appeal:

Contested decision annulled; pursuant to the power conferred under Article 60(1) of Regulation No 6/2002 on Community designs, appeal determined on its merits and Community design declared invalid

Operative part

The Court:

1.Annuls the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 14 October 2009 (Case R 1323/2008‑3);

2.Orders OHIM to bear its own costs and to pay those incurred by José Manuel Baena Grupo, SA, and orders Herbert Neuman and Andoni Galdeano del Sel to bear their own costs.