Case T‑53/13

(publication by extracts)

Vans, Inc.

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Community trade mark — Application for the Community figurative mark representing a wavy line — Absolute ground for refusal — No distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009 — No distinctive character acquired through use — Article 7(3) of Regulation No 207/2009 — Article 76 of Regulation No 207/2009 — Article 75 of Regulation No 207/2009)

Summary — Judgment of the General Court (Fifth Chamber), 6 November 2014

Community trade mark — Procedural provisions — Examination of the facts of the Office’s own motion — Registration of a new trade mark — OHIM examining evidence superficially or not taking certain elements into account — No infringement of Article 76 of Regulation No 207/2009

(Council Regulation No 207/2009, Art. 76(1))

According to Article 76(1) of Regulation No 207/2009 on the Community Trade mark, the examiners and the Boards of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) are required to examine the facts of their own motion. It follows that the competent bodies of OHIM may be led to base their decisions on facts which have not been put forward by the applicant for the mark. Furthermore, OHIM infringes Article 76 of Regulation No 207/2009 if it refuses to take into consideration arguments or items of evidence which the parties have submitted in due time.

A superficial examination of the evidence by the Board of Appeal cannot constitute an infringement of the procedural provision in Article 76 of Regulation No 207/2009. An incorrect assessment of the evidence provided by a party may, as the case may be, give rise to an infringement of the substantive provision applicable to the case.

The fact that the Board of Appeal has not reproduced all of the arguments of one party and the evidence provided by that party, or does not reply to each of those arguments and items of evidence, cannot by itself lead to a finding that the Board of Appeal has refused to take them into account.

Thus, the mere fact that the content of certain documents may have escaped the notice of the Board of Appeal is not capable of constituting an infringement of the procedural provision in Article 76 of Regulation No 207/2009. It constitutes an incorrect assessment of the evidence provided by the applicant which may, as the case may be, give rise to an infringement of a substantive provision. The possible consequences of that incorrect assessment are to be examined in the context of the justification of the latter’s decision.

(see paras 12, 17, 20-22)