# C_2017144EN.01001402.xml

| 8.5.2017 | EN | Official Journal of the European Union | C 144/14 |
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8.5.2017

EN

Official Journal of the European Union

C 144/14

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Appeal brought on 29 December 2016 by Guccio Gucci SpA against the judgment of the General Court (Third Chamber) delivered on 11 October 2016 in Case T-753/15: Guccio Gucci SpA v European Union Intellectual Property Office

(Case C-674/16 P)

(2017/C 144/20)

Language of the case: English

Parties

Parties

Appellant: Guccio Gucci SpA (represented by: V. Volpi, P. Roncaglia, F. Rossi, N. Parrotta, avvocati)

Appellant:

Other parties to the proceedings: European Union Intellectual Property Office; Guess? IP Holder LP

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;

| — | order EUIPO to pay the costs incurred by the Appellant during these proceedings; |
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order EUIPO to pay the costs incurred by the Appellant during these proceedings;

| — | order Guess to pay the costs incurred by the Appellant during these proceedings. |
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order Guess to pay the costs incurred by the Appellant during these proceedings.

Pleas in law and main arguments

Pleas in law and main arguments

| 1. | By means of the present action Guccio Gucci S.p.A. (hereafter referred to as ‘Gucci’ or the ‘Appellant’) requests that the Court of Justice set aside the judgment of the General Court of the European Union (Third Chamber), in Case T-753/15 (the judgment under appeal”), whereby the General Court dismissed Gucci’s application against the decision of the Fourth Board of Appeal of October 14, 2015, in Case R 1703/2014-4, which had reversed the decision of the Opposition Division of July 1, 2014 upholding Gucci’s opposition vis-à-vis the EU designation of International Registration No. 1090048, in class 9 (the ‘contested mark’), in the name of Guess? IP Holder L.P. (hereafter referred to as ‘Guess’). |
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1.

By means of the present action Guccio Gucci S.p.A. (hereafter referred to as ‘Gucci’ or the ‘Appellant’) requests that the Court of Justice set aside the judgment of the General Court of the European Union (Third Chamber), in Case T-753/15 (the judgment under appeal”), whereby the General Court dismissed Gucci’s application against the decision of the Fourth Board of Appeal of October 14, 2015, in Case R 1703/2014-4, which had reversed the decision of the Opposition Division of July 1, 2014 upholding Gucci’s opposition vis-à-vis the EU designation of International Registration No. 1090048, in class 9 (the ‘contested mark’), in the name of Guess? IP Holder L.P. (hereafter referred to as ‘Guess’).

| 2. | The present application is aimed at showing that the General Court erred in concluding that the grounds of refusal set forth in Articles 8(1)(b) and 8(5) of Council Regulation (EC) No. 207/2009 (1) of February 26, 2009 before amendment (hereafter referred to as the ‘CTM Regulation’) do not apply to the contested mark. In particular, the General Court clearly distorted the facts and evidence before it in the assessment of the similarity among the conflicting signs and, as a consequence, wrongly applied both Articles 8(1)(b) and 8(5) CTM Regulation; and failed to state reasons in the judgment under appeal. |
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2.

The present application is aimed at showing that the General Court erred in concluding that the grounds of refusal set forth in Articles 8(1)(b) and 8(5) of Council Regulation (EC) No. 207/2009 (1) of February 26, 2009 before amendment (hereafter referred to as the ‘CTM Regulation’) do not apply to the contested mark. In particular, the General Court clearly distorted the facts and evidence before it in the assessment of the similarity among the conflicting signs and, as a consequence, wrongly applied both Articles 8(1)(b) and 8(5) CTM Regulation; and failed to state reasons in the judgment under appeal.

1

| 3. | The General Court ruled out the similarity among the conflicting marks based on the assumption that the relevant public ... will not perceive in [the contested] mark the capital letter ‘G’, represented by the earlier marks, but rather an abstract ornamental motif. Moreover, having regard to the stylisation of the sign and to the fact that its elements are interlocking or joined together, it could be perceived both as reproducing stylised letters, such as the capital letter ‘X’ or the letter ‘e’, and as a combination of figures and letters, such as the figure ‘3’ and the letter ‘e’’ (see, to that effect, paragraph 32 of the judgment under appeal). This assumption is the crucial point of the judgment under appeal, having led the General Court to rule out any similarity among the conflicting marks and, consequently, the applicability of Articles 8(1)(b) and 8(5) CTM Regulation to the case at issue. |
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3.

The General Court ruled out the similarity among the conflicting marks based on the assumption that the relevant public ... will not perceive in [the contested] mark the capital letter ‘G’, represented by the earlier marks, but rather an abstract ornamental motif. Moreover, having regard to the stylisation of the sign and to the fact that its elements are interlocking or joined together, it could be perceived both as reproducing stylised letters, such as the capital letter ‘X’ or the letter ‘e’, and as a combination of figures and letters, such as the figure ‘3’ and the letter ‘e’’ (see, to that effect, paragraph 32 of the judgment under appeal). This assumption is the crucial point of the judgment under appeal, having led the General Court to rule out any similarity among the conflicting marks and, consequently, the applicability of Articles 8(1)(b) and 8(5) CTM Regulation to the case at issue.

| 4. | However, the above assumption is manifestly wrong. This appears obvious from the documents filed in the case which clearly show that the relevant public does perceive the capital letters ‘G’ in the contested mark, as per the results of a survey pool on the public perception of the contested mark submitted by Gucci. This obvious distortion of the facts and evidence affected the General Court’s assessment of Gucci’s application: had the General Court acknowledged that the relevant public — or at least a portion of said public — would perceive the contested mark as a combination of capital letters ‘G’, it could have not ruled out the similarity among the conflicting marks and therefore the applicability of both Article 8(l)(b) and Article 8(5) CTM Regulation. |
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4.

However, the above assumption is manifestly wrong. This appears obvious from the documents filed in the case which clearly show that the relevant public does perceive the capital letters ‘G’ in the contested mark, as per the results of a survey pool on the public perception of the contested mark submitted by Gucci. This obvious distortion of the facts and evidence affected the General Court’s assessment of Gucci’s application: had the General Court acknowledged that the relevant public — or at least a portion of said public — would perceive the contested mark as a combination of capital letters ‘G’, it could have not ruled out the similarity among the conflicting marks and therefore the applicability of both Article 8(l)(b) and Article 8(5) CTM Regulation.

| 5. | Furthermore, the General Court infringed its duty to state reasons for its judgments, because it completely overlooked the above mentioned survey pool in its assessment, without providing any reasoning, not even implicitly, which makes it possible to understand why it disregarded this crucial piece of evidence. |
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5.

Furthermore, the General Court infringed its duty to state reasons for its judgments, because it completely overlooked the above mentioned survey pool in its assessment, without providing any reasoning, not even implicitly, which makes it possible to understand why it disregarded this crucial piece of evidence.

| 6. | In light of the above, the Appellant requests that the Court of Justice set aside the judgment under appeal and order both the EUIPO and Guess to pay the costs incurred by the Appellant during these proceedings. |
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6.

In light of the above, the Appellant requests that the Court of Justice set aside the judgment under appeal and order both the EUIPO and Guess to pay the costs incurred by the Appellant during these proceedings.

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(1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (codified version)

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OJ 2009, L 78, p. 1

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