13.2.2010

EN

Official Journal of the European Union

C 37/42

(Case T-488/09)

2010/C 37/59

Language in which the application was lodged: German

Parties

Applicant: Jager & Polacek GmbH (Vienna, Austria) (represented by: A. Renck, V. von Bomhard, T. Dolde, lawyers)

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

Other party/parties to the proceedings before the Board of Appeal of OHIM: RT Mediasolutions s.r.o. (Brno, Czech Republic)

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) No R 442/2009-4 of 29 September 2009;

—order OHIM to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: RT Mediasolutions s.r.o

Community trade mark concerned: the word mark ‘REDTUBE’ for goods and services in classes 9, 38 and 41 (Application No 6 096 309)

Proprietor of the mark or sign cited in the opposition proceedings: Jager & Polacek GmbH

Mark or sign cited in opposition: a non-registered trade mark ‘Redtube’

Decision of the Opposition Division: The notice of opposition is deemed not to have been entered

Decision of the Board of Appeal: Rejection of the appeal

Pleas in law:

—Infringement of Article 8(2) of Regulation (EC) No 216/96 (1) in conjunction with Article 63(2) of Regulation (EC) No 207/2009 (2), since the applicant was not given an opportunity to submit a reply;

—Infringement of Article 80(1) and (2) of Regulation No 207/2009, since the decision on the admissibility of the opposition had not been legally annulled.

—Infringement of Article 83 of Regulation No 207/2009, and more particularly of the principle of legitimate expectations, in conjunction with Article 41(3) of the same Regulation, Rule 17(1) of Regulation (EC) No 2868/95 (3) und Article 8(3)(a) and (b) of Regulation (EC) No 2869/95 (4), since the applicant entertained reasonable expectations that the delay in lodging the opposition fee was remedied by the payment within the prescribed time limit of the additional payment.

Commission Regulation (EC) No 216/96 of 5 February 1996 laying down the rules of procedure of the Boards of Appeal of OHIM (OJ 1996 L 28, p. 11),

Commission Regulation (EC) No 2869/95 of 13 December 1995 on the fees payable to the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OJ 1995 L 303, p. 33)

Council Regulation (EC) No 207/2009 of February 2009 on the Community trade mark (OJ L 78 of 24.3.2009, p.1)

Commission Regulation (EC) No 2869/95 of 13 December 1995 on the fees payable to the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OJ 1995 L 303, p. 33)