# C_2015089EN.01000501.xml

| 16.3.2015 | EN | Official Journal of the European Union | C 89/5 |
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16.3.2015

EN

Official Journal of the European Union

C 89/5

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Appeal brought on 22 December 2014 by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) against the judgment of the General Court (Sixth Chamber) delivered on 24 October 2014 in Case T-543/12 Grau Ferrer v OHIM — Rubio Ferrer (Bugui Va)

(Case C-597/14 P)

(2015/C 089/06)

Language of the case: Spanish

Parties

Parties

Appellant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: S. Palmero Cabezas and A. Folliard-Montguiral, Agents)

Appellant:

Other parties to the proceedings: Xavier Grau Ferrer, Juan Cándido Rubio Ferrer and Alberto Rubio Ferrer

Other parties to the proceedings:

Form of order sought

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment under appeal; |
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set aside the judgment under appeal;

| — | deliver a new judgment on the substance of the case, dismissing the action brought against the contested decision, or refer the case back to the General Court; |
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deliver a new judgment on the substance of the case, dismissing the action brought against the contested decision, or refer the case back to the General Court;

| — | order the applicant before the General Court to pay the costs. |
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order the applicant before the General Court to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

| 1. | The General Court infringed Article 76(2) of the CTR (1) and the third paragraph of Rule 50(1) of Regulation No 2868/95 (2) by considering that those provisions were applicable in the present case on the basis of incorrect assessment criteria. |
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1.

The General Court infringed Article 76(2) of the CTR (1) and the third paragraph of Rule 50(1) of Regulation No 2868/95 (2) by considering that those provisions were applicable in the present case on the basis of incorrect assessment criteria.

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| 2. | The General Court infringed Article 76(2) of the CTR and the third paragraph of Rule 50(1) of Regulation No 2868/95 by basing its findings on an incorrect interpretation of the discretion arising from those provisions. In particular, by considering that the Board of Appeal enjoys such a discretion irrespective of whether the evidence presented for the first time before it is additional or not. The question whether the Boards of Appeal’s discretion under Article 76(2) of the CTR and the third paragraph of Rule 50(1) of Regulation No 2868/95 exists in any event, that is to say, even when the evidence presented out of time before the Board of Appeal is new, is a point of law which must be clarified by the Court of Justice. |
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2.

The General Court infringed Article 76(2) of the CTR and the third paragraph of Rule 50(1) of Regulation No 2868/95 by basing its findings on an incorrect interpretation of the discretion arising from those provisions. In particular, by considering that the Board of Appeal enjoys such a discretion irrespective of whether the evidence presented for the first time before it is additional or not. The question whether the Boards of Appeal’s discretion under Article 76(2) of the CTR and the third paragraph of Rule 50(1) of Regulation No 2868/95 exists in any event, that is to say, even when the evidence presented out of time before the Board of Appeal is new, is a point of law which must be clarified by the Court of Justice.

| 3. | The General Court erroneously applied Article 15(1), second paragraph, point (a) of the CTR by concluding that the earlier Community trade mark had been used in a form differing in elements which did not alter the distinctive character of the mark in the form in which it was registered. |
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3.

The General Court erroneously applied Article 15(1), second paragraph, point (a) of the CTR by concluding that the earlier Community trade mark had been used in a form differing in elements which did not alter the distinctive character of the mark in the form in which it was registered.

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(1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)).

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(2)  Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).

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