(Case T
(EU trade mark— Opposition proceedings— Application for the EU word mark Peek’s— Earlier national commercial designation Peek & Cloppenburg— Relative ground for refusal— Likelihood of confusion— Article8(4) of Regulation (EU) 2017/1001— Coexistence of the national commercial designation and the mark applied for— Demarcation agreement— Application of national law by EUIPO— Suspension of the administrative proceedings— Article70 of Regulation 2017/1001— Rule 20(7)(c) of Regulation (EC) No2868/95 (now Article71(1) of Delegated Regulation (EU) 2018/625)— Manifest error of assessment)
1.Judicial proceedings— Application initiating proceedings— Formal requirements— Brief summary of the pleas in law on which the application is based— Pleas in law not set out in the application— General reference to other documents— Inadmissibility
(Statute of the Court of Justice, Arts 21, first para. and 53, first para.; Rules of Procedure of the General Court, Art. 177(1)(d))
(see paras 27, 28)
2.EU trade mark— Appeals procedure— Action before the EU judicature— Jurisdiction of the General Court— Review of the lawfulness of decisions of the Boards of Appeal— Re-examination of the facts in the light of evidence not previously submitted before EUIPO bodies— Precluded
(European Parliament and Council Regulation 2017/1001, Art. 72)
(see para. 37)
3.EU trade mark— Definition and acquisition of the EU trade mark— Relative grounds for refusal— Opposition by the proprietor of an unregistered trade mark or other sign used in the course of trade— Conditions— Interpretation in the light of EU law— Assessment by reference to the criteria determined by the national law governing the sign relied on
(European Parliament and Council Regulation 2017/1001, Art. 8(4))
(see paras 51-53)
4.EU trade mark— Definition and acquisition of the EU trade mark— Relative grounds for refusal— Opposition by the proprietor of an unregistered trade mark or other sign used in the course of trade— Sign giving its holder the right to prohibit the use of a more recent trade mark— Burden of proof
(European Parliament and Council Regulation 2017/1001, Art. 8(4)(b); Commission Regulation No2868/95, Art. 1, rule 37)
(see paras 67, 73, 75, 89)
5.EU trade mark— Definition and acquisition of the EU trade mark— Relative grounds for refusal— Opposition by the proprietor of an unregistered trade mark or other sign used in the course of trade— Review by the competent bodies of EUIPO and by the Court as to the national law applicable— Scope
(European Parliament and Council Regulation 2017/1001, Arts 8(4) and 72(1) and (2))
(see paras 68-72, 87)
6.EU trade mark— Procedural provisions— Examination of the facts of the EUIPO’s own motion— Opposition proceedings— Examination restricted to the facts, evidence and arguments provided— Assessment by EUIPO of the correctness of the facts pleaded and the probative value of evidence submitted— Scope
(European Parliament and Council Regulation 2017/1001, Art. 95)
(see para. 74)
7.EU trade mark— Definition and acquisition of the EU trade mark— Relative grounds for refusal— Opposition by the proprietor of an unregistered trade mark or other sign used in the course of trade— Word mark and commercial designation Peek & Cloppenburg
(European Parliament and Council Regulation 2017/1001, Art. 8(4))
(see paras 96-103, 106, 113)
8.EU trade mark— Appeals procedure— Appeals before the Boards of Appeal— Stay of proceedings— Conditions
(Commission Regulation No2868/95, Art. 1, rules 20(7)(c) and 50(1))
(see paras 123-125)
9.EU trade mark— Appeals procedure— Appeals before the Boards of Appeal— Stay of proceedings— Discretion of the Board of Appeal— Prima facie examination of the chances of success of a counterclaim for the declaration of a right— Scope
(Commission Regulation No2868/95, Art. 1, rules 20(7)(c) and 50(1))
(see paras 127, 129-132, 134)
Re:
| Action brought against the decision of the First Board of Appeal of EUIPO of 31May 2018 (CaseR 60/2007-1), relating to opposition proceedings between Peek & Cloppenburg (Hamburg) and Peek & Cloppenburg (Düsseldorf). |
Operative part
The Court:
1. |
| Dismisses the action; |
2. |
| Orders Peek & Cloppenburg KG (Düsseldorf) to pay the costs. |