Language of document :

Appeal brought on 10 December 2017 by BMB sp. z o.o. against the judgment of the General Court (First Chamber) delivered on 3 October 2017 in Case T-695/15: BMB sp. z o.o. v European Union Intellectual Property Office

(Case C-693/17 P)

Language of the case: English

Parties

Appellant: BMB sp. z o.o. (represented by: K. Czubkowski, radca prawny)

Other parties to the proceedings: European Union Intellectual Property Office, Ferrero SpA

Form of order sought

The appellant claims that the Court should:

set aside the Judgment of the General Court (First Chamber) of 3 September 2017 in Case T-695/15 served on the appellant on 11 October 2017; and

set aside the decision of the Third Board of Appeal of EUIPO of 8 September 201S in Case R 1150/2012-3;

Alternatively the Court of Justice shall set aside the judgment and refer the case back to the General Court if the state of proceedings does not permit a decision by the Court of Justice.

According to article 138(1) of the Rules the Court of Justice should also:

order Ferrero Spa and EUIPO to pay the costs of the present appeal; and

order Ferrero Spa and EUIPO to pay the costs incurred by the appellant before the General Court; and

order Ferrero Spa to pay the costs of proceedings before EUIPO concerning Decision.

Pleas in law and main arguments

In support of the appeal, the appellant relies on 2 pleas in law.

First plea in law, alleging infringement of Article 25(l)(e) of the Council Regulation (EC) No 6/2002 of 12 December 2001 on Community Design1 due to error of law and manifest error in assessment:

that the graphical representation of the earlier trade mark is included in the contested design;

that the earlier trade mark and contested design are highly similar; and

that the Board of Appeal committed no error when it held that there is a likelihood of confusion between earlier trade mark and contested design.

Second plea in law, alleging infringement of Article 25(l)(e) of the Council Regulation (EC) No 6/2002 of 12 December 2001 on Community Design in connection with the general principles of sound administration and the protection of legitimate expectations due to an error of law and manifest error in assessment that reference made by the Board of Appeal to Article 8(l)(b) of Regulation No 207/20092 in paragraph 33 of the Decision, is a mere formal error that did not have a decisive effect of the resolution of the dispute, and that it is not necessary to take into consideration national case-law on the IR in the assessment of the likelihood of confusion.

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1 OJ 2002, L 3, p. 1

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