21.3.2016   

EN

Official Journal of the European Union

C 106/15

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annul the contested judgment of the General Court of 2 October 2015 in Case T-626/13 as far as the General Court dismissed the action with respect to the following services covered by the mark applied for in Classes 35 and 38:

Business consultancy with regard to the creation and operation of retail outlets and central purchasing agencies for retailing and advertising purposes; Sales promotion (for others), advertising, business management, business administration, on-line advertising on a computer network, distribution of advertising material (leaflets, flyers, free newspapers, samples), arranging newspaper subscriptions for others; Business information or enquiries; organization of events and exhibitions for commercial or advertising purposes, advertising management, rental of advertising space, radio and television advertising, advertising sponsorship. (Class 35)

Telecommunications, computer-aided transmission of messages and images, interactive television broadcasting services relating to the presentation of products, communications by computer terminals, communications (transmissions) on the open and closed world wide web. (Class 38)

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if necessary, remit the case back to the General Court,

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order the Defendant to bear the costs of the proceedings.

1.

The Action seeks the partial annulment of the judgment of the General Court in Case T-626/13 of 2 October 2015 in so far as the General Court dismissed the action with respect to services covered by the contested mark in Classes 35 and 38.

2.

The Action is based on two pleas in law: infringement of Article 8(1)(b) CTMR (1) and infringement of Article 8(5) CTMR.

3.

The Applicant is of the opinion that the essential function of a Community collective mark according to Article 66(2) CTMR, consisting of an indication which serves to designate the geographical origin of the goods covered, is not to serve as an indication of commercial origin but only to guarantee the collective origin of the goods or services offered and sold under the mark, i.e. that the products come from an undertaking which is located in the geographical region adopted as a Community collective mark and which is entitled to use the Community collective mark.

4.

Consequently, in the Applicant's view it must be concluded that, in the framework of Article 8(1)(b) CTMR, the geographical origin must be taken into account as a relevant factor- either when assessing the similarity of the goods and/or services at issue and/or when carrying out a global assessment of likelihood of confusion.

5.

Therefore, when comparing goods and/or services of an earlier Community collective mark according to Article 66(2) CTMR, consisting of geographical indication, with those of a Community individual mark, it is not, in the Applicant's opinion, decisive whether the goods and services in question are similar in regard to their nature, purpose, end users and/or distribution channels. Rather, it must be questioned whether the goods and/or services in question may have the same geographical origin.

6.

The Applicant's interpretation of Article 66(2) CTMR results from

7.

The Applicant is of the opinion that the qualities established by the General Court in connection with DARJEELING can also be transferred to services such as business consultancy or telecommunication services, and are able to strengthen the power of attraction of the contested mark in that regard. Further, the Applicant points out that the General Court did not provide any substantiated grounds in its judgment, as to why the qualities associated with the mark DARJEELING could not be transferred to services in Class 35 and 38, which, in itself is an error in law.