Action brought on 9 February 2022 — Schwa-Medico v EUIPO — Med-El Elektromedizinische Geräte (STIWELL)

(Case T-76/22)

(2022/C 148/48)

Language in which the application was lodged: French

Parties

Applicant: Schwa-Medico, Medizinische Apparate, Vertriebsgesellschaft mbH (Ehringshausen, Germany) (represented by: E. Fortunet and P. Marchiset, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Med-El Elektromedizinische Geräte GesmbH (Innsbruck, Austria)

Details of the proceedings before EUIPO

Proprietor of the trade mark at issue: Other party to the proceedings before the Board of Appeal

Trade mark at issue: European Union word mark STIWELL — European Union trade mark No o 4 072 542

Procedure before EUIPO: Proceedings for a declaration of invalidity

Contested decision: Decision of the First Board of Appeal of EUIPO of 24 November 2021 in Case R 1383/2020-1

Form of order sought

The applicant claims that the Court should:

—

annul the contested decision in so far as it refuses to allow the application for the revocation of EU trade mark STIWELL No 4 072 542 for the goods ‘neuromuscular stimulation apparatus’ in Class 10, and in so far as it refuses to fix as the starting point for the revocation date for all the goods the day of the fifth anniversary of the publication of the registration of that mark in the European Union Trade Marks Bulletin (21 February 2011);

—	order EUIPO and the company Med-El to pay the costs in connection with the present action.

Pleas in law

—

Infringement of Article 58(1)(a) of Regulation (EU) No 2017/1001 of the European Parliament and of the Council and an insufficient statement of reasons for its decision in that the Board of Appeal incorrectly analysed the concept of genuine use of the mark by not conducting a global assessment taking account of all the factors and by reference to all the facts;

—

Infringement of Article 58(1)(a) of Regulation (EU) No 2017/1001 of the European Parliament and of the Council and an insufficient statement of reasons for its decision in that the Board of Appeal incorrectly analysed the concept of genuine use of the mark by assessing the specificity of the goods in the light of the activity of the proprietor of the mark and not in the light of the description of the goods;

—

Infringement of Article 58(1)(a) of Regulation (EU) No 2017/1001 of the European Parliament and of the Council and an insufficient statement of reasons for its decision in that the Board of Appeal incorrectly analysed the concept of genuine use of the mark by adopting contradictory reasoning on the alleged specificity of those goods;

—	Error committed by the Board of Appeal in fixing the date on which the revocation took effect, on the basis of having held that a legitimate ground was required and having misinterpreted that legitimate ground.