15.1.2018   

EN

Official Journal of the European Union

C 13/4

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principally, set aside the judgment under appeal and give final judgment on the matter, upholding, in whole or in part, the pleas and arguments made in the appeal and assessing the evidence and documents submitted at the earlier instances of the case;

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alternatively, set aside the judgment under appeal and refer the matter back to the General Court, upholding, in whole or in part, the legal arguments set out in the appeal and assessing the evidence and documents submitted at the earlier instances of the case;

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in any case, order EUIPO to pay the costs at both instances (General Court and Court of Justice).

1.

Infringement of Article 7(3) of Regulation No 207/2009

The General Court found the evidence of acquired distinctiveness insufficient and dismissed the action without giving any reasons as to why such proved and recognised distinctiveness was insufficient to allow registration of the trade mark applied for.

The General Court’s judgment is inadequately reasoned and contrary to the abovementioned provision, because the criteria that must be fulfilled in order for registration as a mark to be allowed are that the representation of the sign be clear, precise, self-sufficient, easily accessible, comprehensible, durable and objective.

2.

Infringement of Article 7(1)(b) of Regulation No 207/2009 — Intrinsic distinctiveness and registrability of the sign refused

No exhaustive and coherent examination of the documentation submitted was made at the earlier instances and the conclusions reached by the General Court are contradictory and not in accordance with the letter or the spirit of the regulation, or the past decisions of EUIPO and the Court of Justice. In particular, the General Court failed to carry out a global assessment of all the evidence, limiting itself to examining the pieces of evidence individually, in breach of Article 7(1)(b) of Regulation No 207/2009.

3.

Failure to assess the applicant’s prior EUTM 3971561

The applicant also claims that EUIPO and the General Court ought to have considered the reasons (thus considering such decisions not as binding precedents but as marks allowed on the grounds of the legally recognition of their registrability) that led to the grant of community trade mark No 3971561, which belongs to the applicant too, for the same goods and having a sign very similar to that of the sign refused.

4.

Failure to assess other marks registered as ‘colour combinations’

In the earlier stages of the present proceedings other EU trade marks that represent very important precedents with regard to the present case were mentioned.

Refusal of registration of the trade mark at issue appears, therefore, unreasonable, if not entirely groundless, and constitutes an error in law, if the earlier decisions are regarded not as binding precedents but rather as the expression of principles of law repeatedly affirmed by EUIPO and the General Court of the European Union.