27.8.2011

EN

Official Journal of the European Union

C 252/39

(Case T-338/11)

2011/C 252/87

Language of the case: English

Parties

Applicant: Getty Images (US), Inc. (Seattle, United States) (represented by: P.G. Olson, lawyer)

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 6 April 2011 in case R 1831/2010-2; and

—Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘PHOTOS.COM’ for goods and services in classes 9, 42 and 45 — Community trade mark application No 8549991

Decision of the Examiner: Partially 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)(b) and (c) in conjunction with Article 7(3) of Council Regulation No 207/2009, as the Board of Appeal: (i) wrongly found that the mark applied for describes the goods/services for which registration was sought; (ii) erred by disregarding the fact that the applicant’s domain name registration corresponds to the mark applied for and has an effect on the assessment of the mark’s distinctive character; and (iii) wrongly assessed that the documentation was insufficient to document that the mark had acquired distinctiveness and based its decision on misunderstanding and misconception of the evidence presented. Infringement of the principles of equal treatment and legitimate expectation, as the Board of Appeal wrongly rejected the importance of the fact that OHIM has accepted the applicant’s trademark ‘PHOTOS.COM’ for similar goods and services in a prior application.