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set aside the decision of the General Court of 17 January 2018 in case T-68/17;

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annul the decision of the Fourth Board of Appeal of the EUIPO of 4 December 2015 in case R 2345/2014-4;

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in the alternative refer the case back to the General Court of the European Union;

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order the respondent and the intervener to bear the costs both in relation to the proceedings at first instance and the appeal.

(1)

First, the General Court misjudged the importance, and the legal consequences of, determining the type of mark concerned. It wrongly assumed that it did not matter whether the contested trademark was classified as a figurative mark or as a position mark. In fact, however, the distinction between different types of marks has a significant influence on their subject matter as well as on the way in which they are used. The use of the contested trademark as a figurative mark would differ considerably from the way in which it would be used if it was a position mark.

(2)

Second, the General Court did not correctly determine the subject matter of the contested trademark, but regarded and treated the contested trade mark as a position mark. The contested mark is a figurative mark, since it has been applied for and registered as a figurative mark, and no description or disclaimer was entered that suggested otherwise. The mere use of broken lines does not make a figurative mark a position mark.

(3)

As a consequence, the General Court incorrectly assumed that Munich S.L. showed genuine use of its mark by showing the sale of shoes, to the side of which two intersecting lines were applied. This kind of use could only account for the use of a position mark, but not for the use of a figurative mark like the contested one.