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Case T-262/09: Action brought on 6 July 2009 — Defense Technology v OHIM — DEF-TEC Defense Technology (FIRST DEFENSE AEROSOL PEPPER PROJECTOR)
ECLI:EU:UNKNOWN:62009TN0262
62009TN0262
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Valentina R., lawyer
29.8.2009
Official Journal of the European Union
C 205/45
(Case T-262/09)
(2009/C 205/83)
Language in which the application was lodged: English
Parties
Applicant: Defense Technology Corporation of America (Jacksonville, United States) (represented by: R. Kunze, lawyer and Solicitor)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Other party to the proceedings before the Board of Appeal: DEF-TEC Defense Technology GmbH (Frankfurt/Main, Germany)
Form of order sought
—Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 May 2009 in case R 493/2002-4 (II); and
—Order the defendant to pay the costs.
Pleas in law and main arguments
Applicant for the Community trade mark: The other party to the proceedings before the Board of Appeal
Community trade mark concerned: The figurative mark ‘FIRST DEFENSE AEROSOL PEPPER PROJECTOR’, for goods in classes 5, 8 and 13 — application No 643 668
Proprietor of the mark or sign cited in the opposition proceedings: The applicant
Mark or sign cited: United States trade mark registration for the word mark ‘FIRST DEFENSE’ for goods in class 13; Two United States trade mark registrations of figurative marks for goods in class 13; An earlier well-known mark in Belgium, Germany and France ‘FIRST DEFENSE’; An earlier well-known mark in Belgium, Germany and France ‘FIRST DEFENSE AND DESIGN’; An earlier non-registered work mark ‘FIRST DEFENSE’ protected in Germany and France; An earlier non-registered mark in Belgium, Germany and France ‘FIRST DEFENSE AND DESIGN’; A trade name ‘FIRST DEFENSE’, protected in Germany
Decision of the Opposition Division: Partially upheld the opposition
Decision of the Board of Appeal: Annulled the decision of the Opposition Division and rejected the opposition
Pleas in law: Infringement of Article 8(3) of Council Regulation 207/2009 as the Board of Appeal did not properly apply the said provision and, moreover, wrongly rendered a decision based on a flawed understanding of the facts presented; Infringement of Articles 65, 75 and 76 of Council Regulation 207/2009 as the Board of Appeal failed to take the necessary measures to comply with the judgment of the Court of First Instance of 6 September 2006 in case T-6/05 DEF-TEC Defense Technology v OHIM — Defense Technology (FIRST DEFENSE AEROSOL PEPPER PROJECTOR)