# C_2015414EN.01001501.xml

| 14.12.2015 | EN | Official Journal of the European Union | C 414/15 |
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14.12.2015

EN

Official Journal of the European Union

C 414/15

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Appeal brought on 12 August 2015 by Pensa Pharma, SA against the judgment of the General Court (Second Chamber) delivered on 3 June 2015 in Case T-544/12: Pensa Pharma, SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Ferring BV, Farmaceutisk Laboratorium Ferring A/S

(Case C-442/15 P)

(2015/C 414/18)

Language of the case: English

Parties

Parties

Appellant: Pensa Pharma, SA (represented by: R. Kunze, G. Würtenberger, Rechtsanwälte)

Appellant:

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Ferring BV, Farmaceutisk Laboratorium Ferring A/S

Other parties to the proceedings:

Form of order sought

Form of order sought

The appellant claims that the Court should:

| — | annul the judgement of the General Court of 3 June 2015 in joint cases T-544/12 and T-546/12, |
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annul the judgement of the General Court of 3 June 2015 in joint cases T-544/12 and T-546/12,

| — | grant the action for annulment brought by Pensa Pharma S.A. against the Board of Appeal's decisions in Case R-1883/2011-5 as well as well as Case R-1884/2011-S, |
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grant the action for annulment brought by Pensa Pharma S.A. against the Board of Appeal's decisions in Case R-1883/2011-5 as well as well as Case R-1884/2011-S,

| — | order the Office and the Other Parties to bear the costs of the proceedings. |
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order the Office and the Other Parties to bear the costs of the proceedings.

Pleas in law and main arguments

Pleas in law and main arguments

| 1. | The Appellant claims that the General Court committed a profound legal error in rejecting the Appellant's claim that the submissions made during the hearing before the General Court be admissible as they were not new but merely expanding the legal arguments previously submitted to the Board of Appeal as well as the General Court. |
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1.

The Appellant claims that the General Court committed a profound legal error in rejecting the Appellant's claim that the submissions made during the hearing before the General Court be admissible as they were not new but merely expanding the legal arguments previously submitted to the Board of Appeal as well as the General Court.

| 2. | In addition the Court failed to take account of the fact that the Board of Appeal had failed to state its reasons why it confirmed the Cancellation Division's decision to grant the Respondent's application for invalidity in the consolidated proceedings initially consisting of four separate applications and to have the Appellant bear the cost of all four proceedings brought before the Office despite the fact that both consolidated decisions were only based on rights invoked and/or owned by one of the two respective applicants. |
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2.

In addition the Court failed to take account of the fact that the Board of Appeal had failed to state its reasons why it confirmed the Cancellation Division's decision to grant the Respondent's application for invalidity in the consolidated proceedings initially consisting of four separate applications and to have the Appellant bear the cost of all four proceedings brought before the Office despite the fact that both consolidated decisions were only based on rights invoked and/or owned by one of the two respective applicants.

| 3. | Moreover the General Court's decision under review is also based on a distortion of facts and evidence as well as on a misconception and misappropriation of the General Court's jurisdiction in as much as it had failed to properly apply the facts available and the law within the ambit of the second plea in law, i.e. the infringement of Art. 8 Community Trademark Regulation 207/2009 (1) (hereinafter referred as CTMR). Had the General Court adhered to the fundamental principles of law, including the right to fair proceedings as well the right to state reasons in support of a decision, it must have granted the action brought before it. This holds the more as the General Court has confirmed the decisions of the Board of Appeal in full knowledge of the fact that the basis of the decisions, namely the existence of a national Benelux and French trademark, at the time of the decision under appeal before the General Court was neither proven by the Respondent nor were they given. Hence the General Court infringed Article 8 (1) CTMR as well as Article 53 (1) CTMR in that it had applied erroneous legal criteria in determining that the Appellant's trademark registrations were to be cancelled based upon prior Benelux and French trademark registrations. |
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3.

Moreover the General Court's decision under review is also based on a distortion of facts and evidence as well as on a misconception and misappropriation of the General Court's jurisdiction in as much as it had failed to properly apply the facts available and the law within the ambit of the second plea in law, i.e. the infringement of Art. 8 Community Trademark Regulation 207/2009 (1) (hereinafter referred as CTMR). Had the General Court adhered to the fundamental principles of law, including the right to fair proceedings as well the right to state reasons in support of a decision, it must have granted the action brought before it. This holds the more as the General Court has confirmed the decisions of the Board of Appeal in full knowledge of the fact that the basis of the decisions, namely the existence of a national Benelux and French trademark, at the time of the decision under appeal before the General Court was neither proven by the Respondent nor were they given. Hence the General Court infringed Article 8 (1) CTMR as well as Article 53 (1) CTMR in that it had applied erroneous legal criteria in determining that the Appellant's trademark registrations were to be cancelled based upon prior Benelux and French trademark registrations.

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| 4. | The errors committed are both of procedural as well as substantive law nature. Hence the Appellant will first illustrate the General Court’s failure to admit the submissions made at the hearing and secondly set out the reasons why the General Court must have come to the conclusion that the second plea in law raised before it was well-founded on account of an infringement of acknowledged principles of due process of law as well as in light of the facts given. |
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4.

The errors committed are both of procedural as well as substantive law nature. Hence the Appellant will first illustrate the General Court’s failure to admit the submissions made at the hearing and secondly set out the reasons why the General Court must have come to the conclusion that the second plea in law raised before it was well-founded on account of an infringement of acknowledged principles of due process of law as well as in light of the facts given.

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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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