2.2.2013   

EN

Official Journal of the European Union

C 32/12

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Set aside the judgment under appeal;

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Order the applicant at first instance to pay the costs of both the proceedings at first instance and the appeal proceedings.

First, it pleads infringement of Article 8(1)(b) of Regulation No 207/2009 (1) because the General Court annulled the decision of the Board of Appeal due to the latter’s failure to carry out an examination of the enhanced distinctiveness of the earlier marks, although the General Court itself held that the signs at issue are different overall, so that there can, for that reason alone, be no likelihood of confusion.

Secondly, the appellant submits that there is infringement of Article 76(1) of Regulation No 207/2009 in conjunction with Article 64(1) of Regulation No 207/2009 as those provisions presuppose that Wesergold Getränkeindustrie should have pleaded the enhanced distinctiveness of the opposing marks, which however clearly does not correspond to the facts. Wesergold Getränkeindustrie had already abandoned the argument of enhanced distinctiveness acquired through use in the course of the opposition proceedings, at the latest, however, in the appeal proceedings. The General Court’s assertion to the contrary, that Wesergold Getränkeindustrie still claimed in the appeal proceedings that there was enhanced distinctiveness acquired through use, is an obvious distortion of the facts, which requires no new evidence.

Thirdly, the judgment is contrary to the settled case-law according to which an error cannot result in the annulment of a decision if that error clearly has no effects on the decision. The issue of enhanced distinctiveness is irrelevant to the decision not only because of the dissimilarity which the General Court expressly found to exist between the signs, but also because Wesergold Getränkeindustrie had already, by the documents submitted in the opposition proceedings, prima facie adduced no evidence of enhanced distinctiveness acquired through use. The General Court should have carried out a short examination as to the validity of that obviously inadequate evidence, which was submitted on 10 March 2008, in order to prevent an unnecessary delay in the proceedings and an unnecessary increase in the costs thereof.