Judgments nº T-132/15 of The General Court, March 14, 2017

• Resolution Date: March 14, 2017
• Issuing Organization: The General Court
• Decision Number: T-132/15

(EU trade mark - Revocation proceedings - EU word mark popchrono - Absence of genuine use of a trade mark - Article 51(1)(a) of Regulation (EC) No 207/2009) In Case T-132/15,

IR, residing in Caen (France), represented by C. de Marguerye, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented initially by S. Palmero Cabezas, and subsequently by D. Gája, acting as Agents,

defendant,

the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being

Pirelli Tyre SpA, established in Milan (Italy), represented byT. Malte Müllerand F. Togo, lawyers,

ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 13 February 2015 (Case R 217/2014-5), relating to revocation proceedings between Pirelli Tyre and Mr IR,

THE GENERAL COURT (Third Chamber),

composed of S. Frimodt Nielsen, President, V. Kreuschitz and N. Półtorak (Rapporteur), Judges,

Registrar: I. Dragan, Administrator,

having regard to the application lodged at the Court Registry on 12 June 2015,

having regard to the response of EUIPO lodged at the Court Registry on 12 November 2015,

having regard to the response of the intervener lodged at the Court Registry on 13 November 2015,

having regard to the decision of 12 January 2016 refusing leave to lodge a reply,

having regard to the order of 20 May 2015 granting the applicant legal aid,

having regard to the application for permission to introduce a new plea in law and to adduce further evidence,

having regard to the application made by the applicant for confidential treatment of the further evidence offered in support of the new plea in law,

having regard to the reassignment of the case to the Eighth Chamber and to a new Judge-Rapporteur,

having regard to the change in the composition of the Chambers of the General Court and the reassignment of the case to the Third Chamber,

further to the hearing on 18 November 2016,

gives the following

Judgment

Background to the dispute

1 On 7 December 2004, the applicant, Mr IR, and Mr W. filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (EUIPO) pursuant to Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1)).

2 Registration as a mark was sought for the word sign popchrono.

3 The goods in respect of which registration was sought are in, inter alia, Class 12 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond to the following description: ‘Vehicles; apparatus for locomotion by land, air or water’.

4 The trade mark application was published in Community Trade Marks Bulletin No 2005/028 of 11 July 2005, and the mark was registered on 9 February 2006 under number 004177267 (‘the contested trade mark’).

5 On 21 May 2012, the intervener, Pirelli Tyre SpA, filed an application for revocation of the contested trade mark in respect of all the goods referred to in paragraph 3 above, based on Article 51(1)(a) of Regulation No 207/2009.

6 By decision of 21 November 2013, the Cancellation Division granted the application for revocation and declared the rights of the applicant and Mr W., the proprietors of the contested trade mark, revoked as from 21 May 2012 in respect of all the goods referred to in the application for revocation.

7 On 15 January 2014, the applicant and Mr W. filed a notice of appeal with EUIPO against the decision of the Cancellation Division.

8 By decision of 13 February 2015 (‘the contested decision’), the Fifth Board of Appeal of EUIPO dismissed the appeal.

9 The Board of Appeal held that the application for revocation was admissible since the intervener had submitted a valid authorisation and had specified the goods in Class 12 covered by the application for revocation. On the substance, it found that the evidence provided by the proprietors of the contested trade mark did not prove genuine use of that mark.

Forms of order sought

10 The applicant claims that the Court should:

- uphold the form of order sought by him, annul the contested decision;

- ‘confirm the property rights of the [contested] trade mark’;

- order EUIPO to pay the costs.

11 EUIPO and the intervener contend that the Court should:

- dismiss the application;

- order the applicant to pay the costs.

12 Since the applicant informed the Court that he waived his request for a hearing and EUIPO informed the Court that it would not be present at the hearing, the hearing took place without those parties being present, pursuant to Article 108(1) of the Rules of Procedure of the General Court.

Law

Admissibility

Admissibility of the action

13 EUIPO contends that the action is inadmissible on the ground that the application does not comply with the requirements of Article 76(d) of the Rules of Procedure. The application as a whole, or the majority of the applicant’s arguments, is unclear and did not enable EUIPO to prepare its defence, nor would it enable the Court to exercise its power of review.

14 Specifically, EUIPO submits that the arguments put forward in support of the fourth part of the first plea in law, the first part of the second plea in law, and the third and fourth pleas in law are inadmissible for want of clarity.

15 It must be recalled that, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union and Article 44(1)(c) of the Rules of Procedure of the General Court of 2 May 1991, which applies to intellectual property matters by virtue of Article 130(1) and Article 132(1) of those rules, the application must contain a summary of the pleas in law on which it is based.

16 That statement must be apparent from the text of the application itself and be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary, without any other supporting information (judgments of 16 November 2011, Chabou v OHIM - Chalou (CHABOU), T-323/10, not published, EU:T:2011:678, paragraph 15; of 24 June 2015, Infocit v OHIM - DIN (DINKOOL), T-621/14, not published, EU:T:2015:427, paragraph 23; see, also, judgment of 17 December 2015, Bice International v OHIM - Bice (bice), T-624/14, not published, EU:T:2015:998, paragraph 19 and the case-law cited).

17 In order to ensure legal certainty and the sound administration of justice, if an action is to be admissible, the essential facts and law on which it is based must be apparent from the text of the application itself, at the very least in summary form, provided that the statement is coherent and comprehensible. Similar requirements apply where a claim is put forward in support of a plea in law (judgment of 16 November 2011, CHABOU, T-323/10, not published, EU:T:2011:678, paragraph 16; see, also, judgment of 24 June 2015, DINKOOL, T-621/14, not published, EU:T:2015:427, paragraph 24 and the case-law cited) and, similarly, all claims must be accompanied by pleas and arguments enabling both the defendant and the Court to assess their validity (judgments of 10 May 2012, Amador López v OHIM (AUTOCOACHING), T-325/11, not published, EU:T:2012:230, paragraph 47; of 7 November 2013, Budziewska v OHIM - Puma (Bounding feline), T-666/11, not published, EU:T:2013:584, paragraph 34; and of 18 November 2014, Conrad Electronic v OHIM - British Sky Broadcasting Group and Sky IP International (EuroSky), T-510/12, not published, EU:T:2014:966, paragraph 15).

18 In the present case, in the first place, it should be noted that the applicant puts forward four pleas in law in support of his claim that the contested decision should be annulled, alleging, respectively, infringement of the right to be heard; restrictive interpretation of the concept of ‘genuine use’; failure to examine certain evidence of genuine use of the contested trade mark; and that EUIPO failed to take account of ‘the [intervener’s] contempt of elementary rules of competition and ... will of obstruction ... against [the applicant]’.

19 In the second place, it is apparent from the application that the applicant has put forward arguments in support of those four pleas in law and, specifically, in support of the fourth part of the first plea in law, the first part of the second plea in law, and the third and fourth pleas in law.

20 Thus, under the fourth part of the first plea in law, alleging infringement of the right to be heard, the applicant claims that it was for the Board of Appeal to ascertain whether the Cancellation Division had examined his arguments relating to the scope of the application for revocation impartially. He submits, inter alia, first, that the Board of Appeal ruled ultra petita by failing to examine his arguments relating to the admissibility of the application for revocation and by taking into account facts which were not included in that application. Secondly, he submits that by failing to take into account his arguments relating to the illegality of the authorisation of the intervener’s representative and breach of the adversarial principle, the Board of Appeal ruled contra petita and, consequently, infringed the obligation to state reasons.

21 Under the first part of the second plea in law, alleging restrictive interpretation of the concept of ‘genuine use’, the applicant submits that he provided evidence of genuine use of the contested trade mark which the Board of Appeal failed to take into consideration. In this connection, it must be observed that it is clear from paragraphs 42, 43 and 55 of the application that the applicant complains that the Board of Appeal did not take into consideration the facts presented.

22 Under the third plea in law, alleging failure to examine certain evidence of...