# C_2007056EN.01001301.xml

| 10.3.2007 | EN | Official Journal of the European Union | C 56/13 |
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10.3.2007

EN

Official Journal of the European Union

C 56/13

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Appeal brought on 30 November 2006 by Tesco Stores Ltd against the judgment of the Court of First Instance (Third Chamber) delivered on 13 September 2006 in Case T-191/04: MIP Group Intellectual Property GmbH & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case C-493/06 P)

(2007/C 56/22)

Language of the case: English

Parties

Appellant: Tesco Stores Ltd (represented by: E. Kelly, Solicitor, S. Malynicz, Barrister)

Appellant:

Other parties to the proceedings: Office for Harmonisation in the Internal Market, MIP Metro Group Intellectual Property GmbH & Co. KG

Other parties to the proceedings:

Form of order sought

The applicant claims that the Court should:

| — | set aside the judgment of the Court of First Instance of 13 September 2006 in Case T-191/04. |
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set aside the judgment of the Court of First Instance of 13 September 2006 in Case T-191/04.

| — | order the Respondent to pay Tesco's costs of this appeal and of the appeal before the Court of First Instance. |
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order the Respondent to pay Tesco's costs of this appeal and of the appeal before the Court of First Instance.

Pleas in law and main arguments

The appellant maintains that the contested judgment should be set aside on the grounds that the Court of First Instance has committed a breach of procedure which adversely affects the appellant and has infringed Community law. In particular, the applicant submits that:

| 1. | Article 8 and 42 of the Community Trade Mark Regulation (1) do not require an opponent to prove any of the conditions of an opposition beyond the opposition period. A correct and legally certain interpretation of the provisions requires an opponent to demonstrate conditions such as proprietorship and subsistence of the earlier right once and once only, that is to say, at the time of the opposition; |
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1.

Article 8 and 42 of the Community Trade Mark Regulation (1) do not require an opponent to prove any of the conditions of an opposition beyond the opposition period. A correct and legally certain interpretation of the provisions requires an opponent to demonstrate conditions such as proprietorship and subsistence of the earlier right once and once only, that is to say, at the time of the opposition;

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| 2. | Rules 15, 16 and 20 of Commission Regulation (EC) No. 2868/95 of 13 December 1995 implementing Regulation No. 40/94 on the Community Trade Mark (2) did not require the opponent to substantiate the earlier mark in any way beyond that already provided and, in particular, did not impose any obligation upon it to demonstrate renewal of the earlier mark beyond the opposition period; |
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2.

Rules 15, 16 and 20 of Commission Regulation (EC) No. 2868/95 of 13 December 1995 implementing Regulation No. 40/94 on the Community Trade Mark (2) did not require the opponent to substantiate the earlier mark in any way beyond that already provided and, in particular, did not impose any obligation upon it to demonstrate renewal of the earlier mark beyond the opposition period;

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| 3. | There was a legitimate expectation on the part of Tesco that it was not required to provide further substantiation of its earlier right beyond that already provided; |
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3.

There was a legitimate expectation on the part of Tesco that it was not required to provide further substantiation of its earlier right beyond that already provided;

| 4. | To impose upon Tesco the obligation to demonstrate renewal, as of 28 January 2000, 24 February 2000, 13 June 2000 or even 23 October 2000 would be to require Tesco retrospectively to prove something that, as of those dates, it was either not able and/or not required to do at the time under national law; |
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4.

To impose upon Tesco the obligation to demonstrate renewal, as of 28 January 2000, 24 February 2000, 13 June 2000 or even 23 October 2000 would be to require Tesco retrospectively to prove something that, as of those dates, it was either not able and/or not required to do at the time under national law;

| 5. | There were breaches of procedure before the Court of First Instance adversely affecting Tesco in that: (a) OHIM sought to rely on a version of its Opposition Guidelines that was not in use at the material time; and (b) OHIM advanced arguments that went beyond the terms of the dispute as delimited by the parties. |
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5.

There were breaches of procedure before the Court of First Instance adversely affecting Tesco in that: (a) OHIM sought to rely on a version of its Opposition Guidelines that was not in use at the material time; and (b) OHIM advanced arguments that went beyond the terms of the dispute as delimited by the parties.

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(1)  OJ L 11, p. 1.

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(2)  OJ L 303, p. 1.

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