Judgment of the General Court (Fifth Chamber) of 18 April 2013 — Peek & Cloppenburg v OHIM — Peek & Cloppenburg (Peek & Cloppenburg)
(Case T‑506/11)
Community trade mark — Opposition proceedings — Application for Community word mark Peek & Cloppenburg — Earlier national commercial name Peek & Cloppenburg — Relative ground for refusal — Likelihood of confusion — Article 8(4) of Regulation (EC) No 207/2009
1. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the holder of an unregistered mark or other sign used in trade — Conditions — Interpretation in the light of EU law — Assessment by reference to the criteria determined by the national law governing the sign relied on (Council Regulation No 207/2009, Art. 8(4)) (see paras 18-20, 47)
2. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the holder of an unregistered mark or other sign used in trade — Sign giving its holder the right to prohibit the use of a more recent trade mark — Burden of proof (Council Regulation No 207/2009, Arts 8(4)(b), and 74(1)) (see paras 20‑22)
3. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the holder of an unregistered mark or other sign used in trade — Word mark Peek & Cloppenburg — Commercial home Peek & Cloppenburg (Council Regulation No 207/2009, Art. 8(4)) (see paras 24, 25, 31, 37, 38, 54, 55)
4. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark –Coexistence of earlier marks on the market — Relevance (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 30)
5. Community trade mark — Appeals procedure — Action before the EU judicature — Jurisdiction of the General Court — Review of the lawfulness of decisions of the Boards of Appeal — Annulment or variation for reasons appearing after judgment was delivered — Exclusion (Council Regulation No 207/2009, Art. 65) (see para. 33)
6. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the holder of an unregistered mark or other sign used in trade — Local scope of the sign (Council Regulation No 207/2009, Art. 8(4)) (see paras 47-52, 54)
7. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the holder of an unregistered mark or other sign used in trade — Local scope of the sign — Means of proof (Council Regulation No 207/2009, Art. 8(4)) (see para. 53)
Re:
| ACTION brought against the decision of the First Board of Appeal of OHIM of 28 February 2011 (Case R 53/2005‑1), relating to opposition proceedings between Peek & Cloppenburg and Peek & Cloppenburg KG. |
Operative part
The Court:
2. | | Orders Peek & Cloppenburg KG to pay the costs. |