# C_2015398EN.01001201.xml

| 30.11.2015 | EN | Official Journal of the European Union | C 398/12 |
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30.11.2015

EN

Official Journal of the European Union

C 398/12

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Appeal brought on 18 June 2015 by Real Express Srl against the order of the General Court (Ninth Chamber) delivered on 21 April 2015 in Case T-580/13: Real Express Srl v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-309/15 P)

(2015/C 398/15)

Language of the case: English

Parties

Parties

Appellant: Real Express Srl (represented by: C. Anitoae, avocat)

Appellant:

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), MIP Metro Group Intellectual Property GmbH & Co. KG

Other parties to the proceedings:

Form of order sought

Form of order sought

The applicant claims that the Court should:

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

| — | 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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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.

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

Pleas in law and main arguments

Pleas in law and main arguments

| 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). |
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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).

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. |
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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.

2

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

1

OJ L 78, p. 1.

(2)  Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark

2

OJ L 303, p. 1.

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