# C_2016454EN.01001502.xml

| 5.12.2016 | EN | Official Journal of the European Union | C 454/15 |
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5.12.2016

EN

Official Journal of the European Union

C 454/15

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Appeal brought on 24 August 2016 by Staatliche Porzellan-Manufaktur Meissen GmbH against the judgment of the General Court (Third Chamber) of 14 June 2016 in Case T-789/14, Staatliche Porzellan-Manufaktur Meissen GmbH v European Union Intellectual Property Office (EUIPO)

(Case C-471/16 P)

(2016/C 454/29)

Language of the case: German

Parties

Appellant: Staatliche Porzellan-Manufaktur Meissen GmbH (represented by: O. Spuhler and M. Geitz, Rechtsanwälte)

Other parties to the proceedings: European Union Intellectual Property Office (EUIPO), Meissen Keramik GmbH

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment of the General Court of the European Union of 14 June 2016 in Case T-789/14 and annul the decision of the Fourth Board of Appeal of the respondent of 29 September 2014 in Cases R 1182/2013-4 and R 1245/2013-4; |
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set aside the judgment of the General Court of the European Union of 14 June 2016 in Case T-789/14 and annul the decision of the Fourth Board of Appeal of the respondent of 29 September 2014 in Cases R 1182/2013-4 and R 1245/2013-4;

| — | in the alternative, set aside that judgment of the General Court of the European Union and refer the case back to the General Court of the European Union; |
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in the alternative, set aside that judgment of the General Court of the European Union and refer the case back to the General Court of the European Union;

| — | order the respondent to pay the costs of the proceedings. |
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order the respondent to pay the costs of the proceedings.

Grounds of appeal and main arguments

| 1. | By the present appeal, the appellant claims that the General Court repeatedly infringed the Treaty on European Union (TEU) and Regulation No 207/2009 (1) in the judgment under appeal. |
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1.

By the present appeal, the appellant claims that the General Court repeatedly infringed the Treaty on European Union (TEU) and Regulation No 207/2009 (1) in the judgment under appeal.

| 2. | First of all, the appellant alleges infringement of the principle of fair procedure under Article 6(1) TEU, in conjunction with the second paragraph of Article 47 of the Charter of Fundamental Rights. The General Court, it submits, failed to consider documents that were submitted in the context of the statement of claim. Those documents merely supplemented the present matters of fact or law. The General Court also did not justify the failure to examine those documents, but merely adopted formulaic wording from another judgment that does not apply to the present case. |
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2.

First of all, the appellant alleges infringement of the principle of fair procedure under Article 6(1) TEU, in conjunction with the second paragraph of Article 47 of the Charter of Fundamental Rights. The General Court, it submits, failed to consider documents that were submitted in the context of the statement of claim. Those documents merely supplemented the present matters of fact or law. The General Court also did not justify the failure to examine those documents, but merely adopted formulaic wording from another judgment that does not apply to the present case.

| 3. | The General Court hereby breached the appellant’s right to fair procedure under Article 6(1) TEU, in conjunction with the second paragraph of Article 47 of the Charter. |
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3.

The General Court hereby breached the appellant’s right to fair procedure under Article 6(1) TEU, in conjunction with the second paragraph of Article 47 of the Charter.

| 4. | In addition, the appellant alleges infringement of Article 15(1) of Regulation No 207/2009 by reason of a distortion of the facts. The General Court based its decision on, inter alia, the ground that certain goods were supposedly not listed in the submitted evidence of use. Those goods were, in fact, listed in the evidence of use. |
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4.

In addition, the appellant alleges infringement of Article 15(1) of Regulation No 207/2009 by reason of a distortion of the facts. The General Court based its decision on, inter alia, the ground that certain goods were supposedly not listed in the submitted evidence of use. Those goods were, in fact, listed in the evidence of use.

| 5. | The General Court hereby distorted the factual basis for the proceedings and therefore infringed Article 15(1) of Regulation No 207/2009. |
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5.

The General Court hereby distorted the factual basis for the proceedings and therefore infringed Article 15(1) of Regulation No 207/2009.

| 6. | Furthermore, the appellant alleges infringement of Article 7(3) of Regulation No 207/2009. The General Court based its decision on the fact that the Meissen® trade mark was an indication of geographical origin. The Meissen® trade mark was registered by the respondent pursuant to Article 7(3) of Regulation No 207/2009 by virtue of acquired distinctive character. The respondent thereby established in law that the Meissen® trade mark was specifically not an indication of geographical origin but rather an indication of trade origin. |
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6.

Furthermore, the appellant alleges infringement of Article 7(3) of Regulation No 207/2009. The General Court based its decision on the fact that the Meissen® trade mark was an indication of geographical origin. The Meissen® trade mark was registered by the respondent pursuant to Article 7(3) of Regulation No 207/2009 by virtue of acquired distinctive character. The respondent thereby established in law that the Meissen® trade mark was specifically not an indication of geographical origin but rather an indication of trade origin.

| 7. | By registering the Meissen® trade mark on the basis of acquired distinctive character, the respondent accorded that mark protection in accordance with Article 7(3) of Regulation No 207/2009. The General Court classified the Meissen® trade mark as a purely geographical indication of origin. The General Court hereby effectively deprived the Meissen® trade mark once more of its protection. |
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7.

By registering the Meissen® trade mark on the basis of acquired distinctive character, the respondent accorded that mark protection in accordance with Article 7(3) of Regulation No 207/2009. The General Court classified the Meissen® trade mark as a purely geographical indication of origin. The General Court hereby effectively deprived the Meissen® trade mark once more of its protection.

| 8. | The appellant also alleges infringement of Article 8(5) of Regulation No 207/2009. The General Court denied the intervention of protection based on reputation under Article 8(5) of Regulation No 207/2009 with the argument that there was no similarity of the goods and services at issue. Article 8(5) of Regulation No 207/2009 explicitly provides that the existence of similarity between goods or services is not necessary. By its decision, the General Court thus turned Article 8(5) of Regulation No 207/2009 into its opposite. |
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8.

The appellant also alleges infringement of Article 8(5) of Regulation No 207/2009. The General Court denied the intervention of protection based on reputation under Article 8(5) of Regulation No 207/2009 with the argument that there was no similarity of the goods and services at issue. Article 8(5) of Regulation No 207/2009 explicitly provides that the existence of similarity between goods or services is not necessary. By its decision, the General Court thus turned Article 8(5) of Regulation No 207/2009 into its opposite.

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(1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark; OJ L 78, p. 1.

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