Judgments nº T-387/18 of Tribunal General de la Unión Europea, February 13, 2020

Resolution Date:February 13, 2020
Issuing Organization:Tribunal General de la Unión Europea
Decision Number:T-387/18
SUMMARY

Marque de l’Union européenne - Demande de marque de l’Union européenne verbale INVENTEMOS EL FUTURO - Motif absolu de refus - Absence de caractère distinctif - Absence de caractère distinctif acquis par l’usage - Article 7, paragraphe 1, sous b), et paragraphe 3, du règlement (UE) 2017/1001

 
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(EU trade mark - Opposition proceedings - Application for EU figurative mark DELTA SPORT - Earlier Spanish word mark COLCHON DELTA - Earlier EU figurative mark DELTA - Relative ground for refusal - Similarity of the goods - Similarity of the signs - Likelihood of confusion - Article 8(1)(b) of Regulation (EU) 2017/1001) In Case T-387/18,

Delta-Sport Handelskontor GmbH, established in Hamburg (Germany), represented by M. Krogmann, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by J. Ivanauskas and H. O’Neill, acting as Agents,

defendant,

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

Delta Enterprise Corp., established in New York, New York (United States), represented by M. Decker, lawyer,

ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 17 April 2018 (Case R 1894/2017-5) relating to opposition proceedings between Delta Enterprise and Delta-Sport Handelskontor,

THE GENERAL COURT (Sixth Chamber),

composed of A. Marcoulli, President, J. Schwarcz (Rapporteur) and C. Iliopoulos, Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Court Registry on 25 June 2018,

having regard to the response of EUIPO lodged at the Court Registry on 12 September 2018,

having regard to the response of the intervener lodged at the Court Registry on 19 September 2018,

having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

gives the following

Judgment

Background to the dispute

1 On 1 July 2015, the applicant, Delta-Sport Handelskontor GmbH, filed an application for registration of a figurative EU trade mark with the European Union Intellectual Property Office (EUIPO) pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended (replaced by Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1)).

2 The mark in respect of which registration was sought (‘the mark applied for’) is the figurative mark, with a colour claim (green: Pantone 335 C; blue: Pantone 286 C), as reproduced below:

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3 The goods in respect of which registration was sought come within Classes 9, 10, 18, 20, 25 and 28 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:

- Class 9: ‘Helmets for bicycles, ski helmets, skateboard helmets’;

- Class 10: ‘Orthopedic articles; bandages for joints, anatomical; elasticated bandages for supportive use; sports bandages; tape; elastic therapeutic tape; rollators; earplugs (ear protectors)’;

- Class 18: ‘Casual bags; sport bags; shopping bags; luggage boxes; travelling requisites, not included in other classes, namely chest pouches, money belts, belt bags, bum bags, spectacle cases, luggage straps, protective covers for suitcases, suitcase covers, travelling sets, toiletry bags, travel pouches’;

- Class 20: ‘Furniture, mirrors, picture frames; goods, not included in other classes, of wood, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother-of-pearl, meerschaum and substitutes for all these materials, or of plastics, namely flower stands, cases, boxes, bins, medicine cabinets, flagpoles, coat racks, stools, cushions, neck cushions, neck roll cushions, baskets, tables, camping tables, camping chairs, camping stools, easy chairs, sleeping bags for camping, wind chimes’;

- Class 25: ‘Clothing; footwear; headgear’;

- Class 28: ‘Games and playthings; gymnastic and sporting articles not included in other classes; decorations for Christmas trees’.

4 The application was published in Community Trade Marks Bulletin No 25/2016 of 8 February 2016.

5 On 28 April 2016, the intervener, Delta Enterprise Corp., filed a notice of opposition under Article 41 of Regulation No 207/2009 (now Article 46 of Regulation 2017/1001) to registration of the mark applied for in respect of certain of the goods referred to in paragraph 3 of the present judgment, namely, in respect of all of the goods claimed in Classes 9, 18, 20, 25 and 28.

6 The opposition was based, first, on the earlier Spanish word mark No 1 523 644 COLCHON DELTA, registered on 2 November 1993, designating goods in Class 20 and corresponding to the following description: ‘Mattresses and pillows’.

7 Secondly, the opposition was based on the earlier EU figurative mark registered on 19 January 2013 under No 10 303 881, reproduced below:

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8 The earlier EU trade mark covers goods in Classes 12, 16, 20 and 24, corresponding, for each of those classes, to the following description:

- Class 12: ‘Baby strollers and baby carriages, children’s car seats’;

- Class 16: ‘Paper height charts, children’s bookends, children’s easels’;

- Class 20: ‘High chairs, playpens, play yards, bassinets, baby walkers, toddler beds, cribs, dressers, armoires, chest of drawers, changing tables for babies, combination changing tables and dressers, tables, chairs, director’s chairs, rocking chairs, desks, furniture toy boxes, toy chests, benches, non-metal bins, step stools, coat racks, shelves, clothes hangers, mirrors, infant bouncers, bed headboards, vanities, stools, mattresses for cribs and cradles, crib bumpers and bumper pads for cradles’;

- Class 24: ‘Vinyl place mats and cloth wash cloths, bed blankets and children’s blankets, and sheets for beds, cribs and cradles, comforters, pillow cases, dust ruffles, bed canopies, play blankets and textile wall hangings; all the aforesaid goods being for children under the age of eighteen’.

9 The ground relied on in support of the opposition was that set out in Article 8(1) of Regulation No 207/2009 (now Article 8(1) of Regulation 2017/1001).

10 On 6 July 2017, the Opposition Division rejected the application for registration in part in respect of some of the goods in Classes 20 and 28 corresponding, for each of those classes, to the following description:

- Class 20: ‘Furniture, mirrors, picture frames; goods, not included in other classes, of wood, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother-of-pearl, meerschaum and substitutes for all these materials, or of plastics, namely flower stands, cases, boxes, bins, medicine cabinets, coat racks, stools, cushions, neck cushions, neck roll cushions, baskets, tables, camping tables, camping chairs, camping stools, easy chairs, sleeping bags for camping’;

- Class 28: ‘Games and playthings’.

11 On 30 August 2017, the applicant brought an action, pursuant to Articles 58 to 60 of Regulation No 207/2009 (now Articles 66 to 68 of Regulation 2017/1001), against the decision of the Opposition Division, requesting that that decision be annulled in its entirety.

12 By decision of 17 April 2018 (‘the contested decision’), the Fifth Board of Appeal of EUIPO dismissed the appeal in its entirety.

Forms of order sought

13 The applicant claims that the Court should:

- annul the contested decision;

- order EUIPO to pay the costs, including those relating to the proceedings before the Board of Appeal;

- take any other measures that it may consider appropriate.

14 EUIPO contends that the Court should:

- dismiss the action in its entirety; and

- order the applicant to pay the costs.

15 The intervener contends that the Court should:

- dismiss the action as unfounded;

- confirm the contested decision;

- in any event, order the applicant to pay the costs, including those incurred by the intervener before the Court and before the Board of Appeal.

Law

The a dmissibility of the applicant’s third head of claim

16 By the third head of claim, the applicant requests the Court to take ‘any other measures that it may consider appropriate’.

17 In that regard, it should be recalled that, under Article 21 of the Statute of the Court of Justice of the European Union and Article 177(1)(d) of the Rules of Procedure of the General Court, every application in the context of litigation relating to intellectual-property rights must contain a summary of the pleas in law relied on and that statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to give a ruling. The same must apply with regard to each head of claim, which must be accompanied by pleas in law and arguments which make it possible for both the defendant and the Court to assess its validity.

18 In order to ensure legal certainty and a 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 summarily, provided that the statement is coherent and comprehensible (see judgment of 15 March 2006, Athinaiki Oikogeniaki Artopoiia v OHIM - Ferrero (FERRÓ), T-35/04, EU:T:2006:82, paragraph 19 and the case-law cited).

19 In that connection, the application must particularise the plea in law on which the action is based. Therefore, a mere abstract statement of that plea does not satisfy the requirements of the Rules of Procedure (see judgment of 15 March 2006, FERRÓ, T-35/04, EU:T:2006:82, paragraph 20 and the case-law cited).

20 In the present case, the applicant does not provide any information in support of that third head of claim. It...

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