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CLASS 46


Now in its twelfth year, Class 46 is dedicated to European trade mark law and practice. This weblog is written by a team of enthusiasts who want to spread the word and share their thoughts with others.

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Anthonia Ghalamkarizadeh
Birgit Clark
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FRIDAY, 25 NOVEMBER 2011
All POWER(BALL) to the CTM applicant

In judgement T-484/09, McLoughney vs. OHIM, the General Court dismissed the action for annulment brought by the (alleged) proprietor of the unregistered mark POWERBALL against the Board of Appeal decision. The latter had confirmed the decision of the Opposition Division, which totally rejected the opposition against and identical CTM application.

In this action, a German distributor of a gyroscopic exercising tool made by a Taiwan company applied to register the word POWERBALL as a CTM in, amongst others, classes 10 and 28, for inter alia orthopaedic articles and sporting apparatus.

Mr. McLoughney – director and main shareholder of a company importing the same gyroscopic exercising tool into the UK - opposed, citing his earlier unregistered sign used in the course of trade in the UK. The grounds of his opposition were Article 8(3) CTMR (application filed by unlawful agent) in addition to Article 8(4) CTMR (sign used in the course of trade of more than local significance).

The Opposition Division dismissed the opposition, as did the Board of Appeal, on the basis that 1. the conditions in Article 8(3) were not complied with, and 2. the opponent had not submitted any proof of the existence of his alleged prior right on a scale that is more than merely local, prior to the filing date of the opposed CTM.

The General Court has now dismissed the opponent’s further appeal as it held that his written application for annulment did not comply with the rules of procedure of the General Court: in particular, the claimant did not clearly mention the subject matter of the proceedings in its application, nor provide an intelligible summary of the pleas in law on which the application was based. From the claim, it was not even clear who owns the rights to the POWERBALL sign; his application contained contradictions and he provided no further evidence, limiting himself to generally referring to evidence previously submitted before the Opposition Division and Board of Appeal without clearly indicating which documents supported his allegations. Furthermore, he did not submit the necessary evidence proving prior use on a more than local level or a copy of the national legislation on the right to prohibit the use of a subsequent mark. As a consequence, the claim was inadmissible.

Posted by: Edith Van den Eede @ 10.27
Tags: general court, annulment action, unregistered right, powerball, likelihood of confusion, rules of procedure, art 44(1)(c) rules of procedure general court, admissibility,
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