Judgment of the General Court (Ninth Chamber) of 12 July 2018 — Lotte v EUIPO — Nestlé Unternehmungen Deutschland (Representation of a koala bear)
(Case T‑41/17)
(EU trade mark — Opposition proceedings — Application for EU figurative mark representing koalas — Earlier national three-dimensional mark KOALA-BÄREN Schöller lustige Gebäckfiguren — Article 42(2) and (3) of Regulation (EC) No 207/2009 (now Article 47(2) and (3) of Regulation (EU) 2017/1001) — Proof of genuine use of the earlier mark — Power to alter decisions)
1. EU trade mark — Appeals procedure — Action before the EU judicature — Jurisdiction of the General Court — Re-evaluation of the facts in the light of evidence produced for the first time before it — Not included
(Council Regulation No 207/2009, Art. 65)
(see para. 22)
2. EU trade mark — Procedural provisions — Statement of reasons for decisions — Article 75, first sentence, of Regulation No 207/2009 — Scope identical to that of Article 296 TFEU
(Art. 296 TFEU; Council Regulation No 207/2009, Art. 75, first sentence)
(see para. 40)
3. EU trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Genuine use — Meaning — Criteria for assessment — Requirement of solid and objective evidence
(Council Regulation No 207/2009, Art. 42(2) and (3))
(see paras 47-49, 51, 52)
4. EU trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Genuine use — Application of the criteria to the case in question
(Council Regulation No 207/2009, Art. 42(2) and (3))
(see para. 50)
5. EU trade mark — Appeals procedure — Action before the EU judicature — Power of the General Court to alter the contested decision — Limits
(Council Regulation No 207/2009, Art. 65(3))
(see para. 65)
Re:
| Action brought against the decision of the Fifth Board of Appeal of EUIPO of 28 October 2016 (Case R 0250/2016-5), concerning opposition proceedings between Nestlé Schöller GmbH & Co. KG and Lotte. |
Operative part
The Court:
1. | | Annuls the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 28 October 2016 (Case R 0250/2016-5) in so far as, in that decision, the Board of Appeal upheld the opposition for ‘pastries filled with chocolate cream; chocolate; confectionery products; pastry; cookies; crackers; edible ices; pastry and confectionery’ in Class 30; |
2. | | Rejects the opposition brought by Nestlé Schöller GmbH & Co. KG, legal predecessor of Nestlé Unternehmungen Deutschland GmbH, for ‘pastries filled with chocolate cream; chocolate; confectionery products; pastry; cookies; crackers; edible ices; pastry and confectionery’ in Class 30; |
3. | | Orders EUIPO to bear its own costs and to pay those incurred by Lotte Co Ltd for the purposes of the proceedings before the General Court; |
2. | | Rejects the opposition brought by Nestlé Schöller GmbH & Co. KG, legal predecessor of Nestlé Unternehmungen Deutschland GmbH, for ‘pastries filled with chocolate cream; chocolate; confectionery products; pastry; cookies; crackers; edible ices; pastry and confectionery’ in Class 30; |
3. | | Orders EUIPO to bear its own costs and to pay those incurred by Lotte Co Ltd for the purposes of the proceedings before the General Court; |
4. | | Orders Nestlé Unternehmungen Deutschland to bear its own costs. |
3. | | Orders EUIPO to bear its own costs and to pay those incurred by Lotte Co Ltd for the purposes of the proceedings before the General Court; |
4. | | Orders Nestlé Unternehmungen Deutschland to bear its own costs. |
4. | | Orders Nestlé Unternehmungen Deutschland to bear its own costs. |