30.11.2015   

EN

Official Journal of the European Union

C 398/12

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Set aside the appealed order of the General Court issued on 21 April 2015 in Case T-580/13.

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Exercise its full jurisdiction and, based on the elements available to it, uphold Real Express Srl’s action against the Fourth Board of Appeal decision dated 16 September 2013 in Case R 1519/2012-4 or, alternatively, refer the case back to the General Court for reconsideration.

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Order OHIM and the Intervener to pay the costs of the Applicant, both at first instance and on appeal.

1.

The General Court, when making its order, considered all of the appellant’s arguments admissible except at paragraphs 23 and 25 of the Application where it was argued that the Intervener acted with bad intention in registering an identical REAL Community Trademark for identical classes to the one which the appellants applied to prohibit due to their earlier rights in Romania. The Fourth Board of Appeal was provided with the relevant Court certificates. The General Court overlooked the obligations of the Board of Appeal in conformity with Article 63(2) and 64(1) Regulation No. 207/2009 (1).

2.

At paragraphs 38 and 39 of the Appealed order the General Court misapplied Rules 15(2)(h)(iii), 17(1)(4) of Commission Regulation (EC) No. 2868/1995 (2) and Articles 75 and 78(1)(a)(b) of Regulation 207/2009. At paragraph 41 and 42 of the Appealed order the General Court misapplied 80(1)(2)(3) of Regulation 207/2009, Rule 53 and 53a of Regulation 2868/1995 and overlooked page 4, paragraph 5, of the Communication No. 11/98 of the President of the Office from the Manual Concerning Proceedings Before The Office For Harmonization In The Internal Market (Trade Marks and Designs) Part A General Rules Section 6 Revocation Of Decision And Cancellation Of Entries In The Register And Correction Of Errors. At paragraphs 43, 44 and 45 of the Appealed order the General Court misapplied Articles 63(2) and 64 of Regulation No. 207/2009 and thus failed to recognized that the Board of Appeal infringed the principles of legal certainty and procedural economy and the aim of the opposition proceedings by failing in their obligation to enable conflicts between trademarks before registration and, contrary to the rules, failing to take into consideration facts, circumstance and evidence provided by Real Express Srl which were relevant to the outcome of the opposition proceedings.