Judgment of the General Court (First Chamber) of 29 March 2017 — Alcohol Countermeasure Systems (International) v EUIPO — Lion Laboratories (ALCOLOCK)
(Case T‑638/15)
(EU trade mark — Invalidity proceedings — EU word mark ALCOLOCK — United Kingdom word mark ALCOLOCK — Relative ground for refusal — Article 8(1)(a) and (b) and Article 53(1)(a) and (b) of Regulation (EC) No 207/2009 — Genuine use of the earlier mark)
1. 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 — Essential formality
(Art. 296 TFEU; Council Regulation No 207/2009, Art. 75, first sentence)
(see para. 13)
2. EU trade mark — Appeals procedure — Boards of Appeal — Classification as administration of the Office — Right of the parties to a fair ‘process’ — None
(Council Regulation No 207/2009, Arts 62 to 64)
(see para. 16)
3. EU trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Use of the mark in a form differing by elements not altering the distinctive character of the mark
(Council Regulation No 207/2009, Arts 15(1), second subpara., (a), and 42(2) and (3))
(see para. 22)
4. EU trade mark — Surrender, revocation and invalidity — Examination of the application — Proof of use of the earlier mark — Use by a third party with the consent of the trade mark proprietor — Burden of proof
(Council Regulation No 207/2009, Art. 15(2))
(see paras 38, 43)
5. EU trade mark — Surrender, revocation and invalidity — Examination of the application — Proof of use of the earlier mark — Use by a third party with the consent of the trade mark proprietor — Express or implied consent
(Council Regulation No 207/2009, Art. 15(2))
(see para. 40)
6. EU trade mark — Surrender, revocation and invalidity — Examination of the application — Proof of use of the earlier mark — Genuine use — Concept — Interpretation taking account of the rationale of Article 57(2) and (3) of Regulation No 207/2009
(Council Regulation No 207/2009, Art. 57(2) and (3); Commission Regulation No 2868/95, Art. 1, Rules 22(3), and 40(6))
(see paras 61, 62)
7. EU trade mark — Surrender, revocation and invalidity — Examination of the application — Proof of use of the earlier mark — Genuine use — Concept — Criteria for assessment — Requirement of solid and objective evidence
(Council Regulation No 207/2009, Art. 57(2) and (3))
(see paras 63-68)
Re:
| ACTION brought against the decision of the First Board of Appeal of EUIPO of 11 August 2015 (Case R 1323/2014-1) relating to invalidity proceedings between Lion Laboratories and Alcohol Countermeasure Systems (International). |
Operative part
The Court:
2. | | Orders Alcohol Countermeasure Systems (International) Inc. to pay the costs. |