Judgment of the General Court (First Chamber) of 29March 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— Article8(1)(a) and (b) and Article53(1)(a) and (b) of Regulation (EC) No207/2009— Genuine use of the earlier mark)
1.EU trade mark— Procedural provisions— Statement of reasons for decisions— Article75, first sentence, of Regulation No207/2009— Scope identical to that of Article296 TFEU— Essential formality
(Art. 296 TFEU; Council Regulation No207/2009, 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 No207/2009, 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 No207/2009, 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 No207/2009, 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 No207/2009, 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 Article57(2) and (3) of Regulation No207/2009
(Council Regulation No207/2009, Art. 57(2) and (3); Commission Regulation No2868/95, 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 No207/2009, Art. 57(2) and (3))
(see paras 63-68)
Re:
| ACTION brought against the decision of the First Board of Appeal of EUIPO of 11August 2015 (CaseR 1323/2014-1) relating to invalidity proceedings between Lion Laboratories and Alcohol Countermeasure Systems (International). |
Operative part
The Court:
1. |
| Dismisses the action; |
2. |
| Orders Alcohol Countermeasure Systems (International) Inc. to pay the costs. |