Action brought on 10 June 2009 — Feng Shen Technology v OHIM — Majtczak (FS)

(Case T-227/09)

2009/C 193/40

Language in which the application was lodged: English

Parties

Applicant: Feng Shen Technology Co. Ltd (Gueishan, Taiwan) (represented by: W. Festl-Wietek and P. Rath, lawyers)

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

Other party to the proceedings before the Board of Appeal: Jarosław Majtczak (Łódź, Poland)

Form of order sought

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The mark “FS” for goods in class 26 — Community trade mark No 4 431 391

Proprietor of the Community trade mark: The other party to the proceedings before the Board of Appeal

Party requesting the declaration of invalidity of the Community trade mark: The applicant

Trade mark right of the party requesting the declaration of invalidity: Several earlier trade mark registrations for the figurative sign “FS” in Taiwan, China and Ghana in relation to zippers and related products

Decision of the Cancellation Division: Rejected the request for a declaration of invalidity

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 51(1)(b) of Council Regulation 40/94 (which became Article 52(1)(b) of Council Regulation 207/2009), as the Board of Appeal failed to properly evaluate the evidence and documents provided by the parties and failed to properly analyse the facts as a precondition for a finding that the trade mark application concerned was made in bad faith