Appeal brought on 20 March 2013 by Reber Holding GmbH & Co. KG against the judgment of the General Court (Fifth Chamber) delivered on 17 January 2013 in Case T-355/09 Reber Holding GmbH & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-141/13 P)

Language of the case: German

Parties

Appellant: Reber Holding GmbH & Co. KG (represented by: O. Spuhler and M. Geitz, Rechtsanwälte)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Wedl & Hofmann GmbH

Form of order sought

Set aside the judgment of 17 January 2013 in Case T-355/09 and the decision of the Fourth Board of Appeal of the respondent of 9 July 2009 in Case R 623/2008-4;

in the alternative,

set aside the judgment referred to at I above and refer the case back to the General Court;

order the respondent to pay the costs of the proceedings.

Pleas in law and main arguments

The General Court interprets the element of 'genuine use' in the first sentence of Article 42(2) in conjunction with Article 42(3) of the Community Trade Mark Regulation as being dependent on the level of turnover and the number of sales outlets. This is incorrect for the simple reason that, according to the relevant case-law of the Court of Justice, there is no need at all for a particular level of turnover to be achieved in order for use to be genuine.

Even if the General Court had established that, in the present case, the mark cited in opposition, 'Walzertraum', had not been used for chocolate goods in such a way as to preserve the rights attached to it, the General Court should not simply have broken off its assessment.

The General Court ought to have moved on in its assessment to focus on handmade chocolates, taking into consideration the principles of the judgment of the Court of Justice of 19 June 2012 in Case C-307/10 (not yet published). Next it ought to have assessed whether the evidence of use submitted was sufficient to demonstrate use such as to preserve the rights attached to the mark cited in opposition, 'Walzertraum', in respect of handmade chocolates. That is clearly the case. The General Court failed, however, to proceed with that assessment.

Furthermore the contested decision also represents a breach of the general principle of equal treatment. The unequal treatment stems, in particular, from the fact that the General Court focused in relation to the mark cited in opposition also on chocolate goods generally, even though the mark cited in opposition is used for handmade chocolates. By using chocolate goods as a point of reference, the standards for use such as to preserve rights applied to the appellant are necessarily the same as those applied to a multinational corporation. That is contrary to the general principle of equal treatment.

The appeal should therefore be allowed in its entirety.

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