Appeal brought on 24 April 2018 by Repower AG against the judgment of the General Court (Fifth Chamber) delivered on 21 February 2018 in Case T-727/16, Repower v EUIPO

(Case C-281/18 P)

Language of the case: French

Parties

Appellant: Repower AG (represented by: R. Kunz-Hallstein, H.P. Kunz-Hallstein and V. Kling, Rechtsanwälte)

Other parties to the proceedings: European Union Intellectual Property Office, repowermap.org

Form of order sought

The appellant claims that the Court should:

set aside the first paragraph of the operative part of the General Court’s judgment of 21 February 2018 in Case T-727/16, in so far as the action was dismissed;

annul the decision of the Fifth Board of Appeal of EUIPO of 3 August 2016 (Case R 2311/2014-5 (REV));

order EUIPO to pay the costs.

Pleas in law and main arguments

EUIPO was not authorised to substitute the reasoning for the revocation in the proceedings before the General Court. EUIPO altered the subject matter of the dispute and infringed the right to be heard and the obligation to exercise its discretion.

The general principle of law authorising the withdrawal of an unlawful administrative measure did not apply in the present case. There is no legal gap in the legislation. The provisions of Articles 80 and 83 of Regulation No 207/2009 constitute a lex specialis.

Under Article 83 of Regulation No 207/2009, the onus was not on the appellant to prove that a principle of withdrawal of unlawful administrative measures does not exist in the Member States.

Even assuming that such a general principle applies in the field of trade mark law, the conditions for revocation in full were not fulfilled by reason of the protection of legitimate expectations.

There is a failure to state proper reasons in the Board of Appeal’s decision.

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