Judgment of the General Court (Fifth Chamber) of 24 March 2011 – Cybergun v OHIM – Umarex Sportwaffen (AK47)
(Case T-419/09)
Community trade mark – Invalidity proceedings – Community word mark AK 47 – Absolute ground for refusal – Descriptive character – Article 7(1)(c) and Article 52(1)(a) of Regulation (EC) No 207/2009
1.Community trade mark – Appeals procedure – Appeal brought against a decision of a unit of the Office ruling at first instance and referred to the Board of Appeal – Functional continuity between those two bodies – Examination of the appeal by the Board of Appeal – Scope (Council Regulation No 207/2009, Art. 64(1)) (see paras 15-18)
2.Community trade mark – Surrender, revocation and invalidity – Absolute grounds of invalidity – Registration contrary to Article 7(1)(c) of Regulation No 207/2009 (Council Regulation No 207/2009, Arts 7(1)(c) and 52(1)(a)) (see paras 37, 42-45)
Re:
| ACTION brought against the decision of the First Board of Appeal of OHIM of 5 August 2009 (Case R 1101/2007-1) relating to invalidity proceedings between Umarex Sportwaffen GmbH & Co. KG and Cybergun SA. |
Information relating to the case
Registered Community trade mark of which cancellation sought: | Word mark AK 47 for goods in Class 28 – Community trade mark No 4528378 |
Proprietor of the Community trade mark: | Cybergum SA |
Party requesting the declaration of invalidity of the Community trade mark: | Umarex Sportwaffen GmbH & Co.KG |
Decision of the Cancellation Division: | Rejection of the application for a declaration of invalidity of the mark concerned |
Decision of the Board of Appeal: | Annulment of the decision of the Cancellation Division and declaration of invalidity of the Community trade mark |
Operative part
The Court:
1. |
| Dismisses the action; |
2. |
| Orders Cybergun SA to pay the costs. |