# C_2012366EN.01002701.xml

| 24.11.2012 | EN | Official Journal of the European Union | C 366/27 |
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24.11.2012

EN

Official Journal of the European Union

C 366/27

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Appeal brought on 3 October 2012 by Rivella International AG against the judgment of the General Court (Sixth Chamber) delivered on 12 July 2012 in Case T-170/11 Rivella International AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-445/12 P)

2012/C 366/48

Language of the case: German

Parties

Parties

Appellant: Rivella International AG (represented by: C. Spintig, S. Pietzcker and R. Jacobs, lawyers)

Appellant:

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Baskaya di Baskaya Alim e C. Sas

Other party to the proceedings:

Form of order sought

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment under appeal and refer the case back to the General Court; |
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set aside the judgment under appeal and refer the case back to the General Court;

| — | order the respondent to pay the costs of the appeal proceedings and the proceedings at first instance. |
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order the respondent to pay the costs of the appeal proceedings and the proceedings at first instance.

Pleas in law and main arguments

Pleas in law and main arguments

By the present appeal the appellant challenges the judgment of the General Court (Sixth Chamber) of 12 July 2012 concerning an action brought against the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 10 January 2011 (Case R 534/2010-4), relating to opposition proceedings between Rivella International AG and Baskaya di Baskaya Alim e C. Sas.

The appellant relies on the following grounds of appeal:

The General Court infringed Article 42(2) and (3) of Regulation No 207/2009 (1) in that it

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| — | requested proof of genuine use of the mark on which the opposition is based although that mark is not a Community trade mark or an ‘earlier national trade mark’, but the German part of an internationally registered mark; |
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requested proof of genuine use of the mark on which the opposition is based although that mark is not a Community trade mark or an ‘earlier national trade mark’, but the German part of an internationally registered mark;

| — | took the view that the question of the territory in which an earlier (internationally) registered mark is used is exhaustively determined by Regulation No 207/2009 and that the national law of Member States to that extent applies only in a supplementary capacity; |
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took the view that the question of the territory in which an earlier (internationally) registered mark is used is exhaustively determined by Regulation No 207/2009 and that the national law of Member States to that extent applies only in a supplementary capacity;

| — | did not take into account the fact that such an interpretation leads to a result which is not desired by Regulation No 207/2009 and in particular by recital 3 in the preamble to that regulation, namely to a dissociation between registration and the possibility of using a Community trade mark in cases which are not expressly covered by the regulation. |
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did not take into account the fact that such an interpretation leads to a result which is not desired by Regulation No 207/2009 and in particular by recital 3 in the preamble to that regulation, namely to a dissociation between registration and the possibility of using a Community trade mark in cases which are not expressly covered by the regulation.

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(1)  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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