Judgment of the General Court (Seventh Chamber) of 20 March 2019 –
Prim v EUIPO — Primed Halberstadt Medizintechnik (PRIMED)
(Case T‑138/17)
(EU trade mark — Invalidity proceedings — EU word mark PRIMED — Earlier national figurative marks PRIM S.A., PRiM, S.A. SUMINISTROS MEDICOS and GRUPO PRiM — Genuine use of the earlier marks — Article 57(2) and (3) of Regulation (EC) No 207/2009 (now Article 64(2) and (3) of Regulation (EU) 2017/1001) — Right to be heard — Second sentence of Article 75 of Regulation No 207/2009 (now second sentence of Article 94(1) of Regulation 2017/1001) — Submission of evidence for the first time before the Board of Appeal — Discretion of the Board of Appeal — Classification as new or additional evidence — Article 76(2) of Regulation No 207/2009 (now Article 95(2) of Regulation 2017/1001))
1. EU trade mark — Decisions of the Office — Observance of the rights of the defence — Scope of the principle
(Charter of Fundamental Rights of the European Union, Art. 41(2)(a); Council Regulation No 207/2009, Art. 75, second sentence)
(see paras 25-28, 42)
2. EU trade mark — Appeals procedure — Appeal brought against a decision by the Cancellation Division of EUIPO — Examination by the Board of Appeal — Scope — Facts and evidence not produced in support of the opposition within the period prescribed for that purpose — Account taken — Discretion of the Board of Appeal — No contrary provision
(Council Regulation No 207/2009, Arts 53(1)(a), 57(2) and (3), 63(2), 76(2), and 78; Commission Regulation No 2868/95, Art. 1, Rule 40(6))
(see paras 46-53)
3. EU trade mark — Appeals procedure — Action before the EU judicature — Power of the General Court to vary the contested decision — Limits
(Council Regulation No 207/2009, Art. 65(3))
(see para. 63)
4. EU trade mark — Appeals procedure — Action before the EU judicature — Jurisdiction of the General Court — Declaratory judgments — Not included
(Council Regulation No 207/2009, Art. 65(2) and (3))
(see para. 67)
5. EU trade mark — Appeals procedure — Action before the EU judicature — Jurisdiction of the General Court — Direction issued to the Office — Not included
(Council Regulation No 207/2009, Art. 65(6))
(see para. 69)
Re:
| Action brought against the decision of the Fourth Board of Appeal of EUIPO of 19 December 2016 (Joined Cases R 2494/2015-4 and R 163/2016-4), relating to invalidity proceedings between Prim and Primed Halberstadt Medizintechnik. |
Operative part
The Court:
1. | | Annuls the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 19 December 2016 (Joined Cases R 2494/2015-4 and R 163/2016-4); |
2. | | Dismisses the action as to the remainder; |
3. | | Orders EUIPO to bear its own costs and to pay half of those incurred by Prim, SA; |
4. | | Orders Primed Halberstadt Medizintechnik GmbH to bear its own costs and to pay half of those incurred by Prim. |