17.3.2012   

EN

Official Journal of the European Union

C 80/6

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Set aside the judgment of the General Court of the European Union of 15 September 2011 in Case T-427/09,

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dismiss the action brought by centrotherm Clean Solutions GmbH & Co. KG against the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 25 August 2009 in Case R 6/2008-4,

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order centrotherm Clean Solutions GmbH & Co. KG to pay the costs.

1.

The contested decision infringes Article 65 of Regulation No 207/2009 (1) and Article 134(2) and (3) of the Rules of Procedure of the General Court. According to these provisions, the General Court was obliged to take account of all of the pleas in law made by the appellant.

2.

Furthermore, the judgment under appeal is incompatible with Articles 51(1)(a) and 76 of Regulation No 207/2009. It relies on a mistaken premiss that it is the appellant that bears the burden of proof of use such as to preserve the rights attached to the contested marks. In actual fact, in revocation proceedings under Article 51(1)(a) of Regulation No 207/2009 and Article 76(1) of Regulation No 207/2009 the principle of a competent authority’s duty to examine facts of its own motion applies. Moreover, it follows from the provisions and the scheme of Regulation No 207/2009, in particular from a comparison of the revocation procedure provisions with those governing opposition and invalidity due to relative grounds for refusal, that, in revocation proceedings, in principle it is not the proprietor of the contested mark who has to adduce evidence of use.

It follows, in particular, that the failure of OHIM to take account of evidence on the ground of an alleged submission being out of time is not justified.

3.

By wrongly accepting, in contrast to the case-law of the Court of Justice, that the concept of genuine use constitutes a contrast to mere minimal use, the General Court misinterpreted Article 51(1)(a) of Regulation No 207/2009.

4.

Finally, OHIM’s statement, which was not contradicted by the General Court, according to which the sworn statement of the manager of the appellant does not constitute evidence under Article 78(1)(f) of Regulation No 207/2009 is incorrect and contradicts the case-law of the General Court itself.