Appeal brought on 29 November 2011 by Centrotherm Systemtechnik GmbH against the judgment of the General Court (Sixth Chamber) delivered on 15 September 2011 in Case T-434/09 Centrotherm Systemtechnik v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-610/11 P)

Language of the case: German

Parties

Appellant: Centrotherm Systemtechnik GmbH (represented by: A. Schulz and C. Onken, lawyers)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), centrotherm Clean Solutions GmbH & Co. KG

Form of order sought

Set aside the judgment of the General Court of the European Union of 15 September 2011 in Case T-434/09,

annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 25 August 2009 in Case R 6/2008-4, in so far as it grants the application for a declaration of revocation of Community trade mark No 1 301 019 CENTROTHERM,

order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) and centrotherm Clean Solutions GmbH & Co. KG to pay the costs.

Grounds of appeal and main arguments

The present appeal is brought against the judgment of the General Court dismissing the action of the appellant against the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 25 August 2009 on revocation proceedings between centrotherm Clean Solutions GmbH & Co. KG and Centrotherm Systemtechnik GmbH.

The appellant bases its appeal on the following grounds of appeal:

The contested decision infringes Article 51(1)(a) of Regulation No 207/2009 ² in that it disregards the evidential value of the sworn statement of the manager of the appellant produced before the Cancellation Division. Contrary to the view of the Board of Appeal and the General Court, the sworn statement is indeed in accordance with the case-law of the General Court admissible evidence within the meaning of Article 78(1)(f) of the Regulation No 207/2009.

The General Court also misinterpreted Article 76(1) of Regulation No 207/2009. In contrast to the finding of the lower instances, according to the unambiguous wording of Article 76(1) of that Regulation as well as its scheme, in revocation proceedings under Article 51(1)(a) of Regulation No 207/2009, the principle is that the competent authority has a duty to examine relevant facts of its own motion.

The documents presented by the appellant in the proceedings before the Board of Appeal ought not to have been dismissed as being out of time. This arises from, first, the scheme of Regulation No 207/2009, in particular a comparison between the rules governing use in revocation proceedings and those in opposition and invalidity proceedings due to absolute grounds for refusal, and, second, from the general principles of the allocation of the burden of proof.

In this context a teleological interpretation restricting the scope of Rule 40(5) of Regulation No 2868/95  is necessary.

Should the Court of Justice reject such a teleological interpretation of Rule 40(5) of Regulation No 2868/95, that rule would be inapplicable, since it would be contrary to the provisions and the scheme of Regulation No 207/2009 and would infringe the general fundamental principle of proportionality.

____________

¹ - Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark, OJ 2009 L 78, p. 1.

² - Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark, OJ 1995 L 303, p. 1.