# 62021TJ0032

JUDGMENT OF THE GENERAL COURT (Second Chamber)

6 October 2021 (
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(EU trade mark – EU word mark Muresko – Earlier national word marks Muresko – Claiming seniority of the earlier national marks after registration of the EU trade mark – Articles 39 and 40 of Regulation (EU) 2017/1001 – Registration of earlier national marks which have expired by the date of the claim)

In Case T‐32/21,

Daw SE, established in Ober-Ramstadt (Germany), represented by A. Haberl, lawyer,

Daw SE

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by E. Markakis, acting as Agent,

European Union Intellectual Property Office (EUIPO)

defendant,

ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 25 November 2020 (Case R 1686/2020-4), relating to a claim of seniority of earlier identical national marks for the EU word mark Muresko No 15465719,

THE GENERAL COURT (Second Chamber),

composed of V. Tomljenović, President, F. Schalin and P. Škvařilová-Pelzl (Rapporteur), Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Court Registry on 22 January 2021,

having regard to the response lodged at the Court Registry on 30 March 2021,

having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

gives the following

Judgment (
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Judgment (
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2

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Forms of order sought

Forms of order sought

| 9 | The applicant claims that the Court should:





  – | annul the contested decision; |
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9

The applicant claims that the Court should:

–

annul the contested decision;

| – | order EUIPO to enter the contested claim for the EU trade mark at issue; |
| --- | --- |

–

order EUIPO to enter the contested claim for the EU trade mark at issue;

| – | order EUIPO to pay the costs. |
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–

order EUIPO to pay the costs.

| 10 | EUIPO contends that the Court should:





  – | dismiss the action; |
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10

EUIPO contends that the Court should:

–

dismiss the action;

| – | order the applicant to pay the costs. |
| --- | --- |

–

order the applicant to pay the costs.

Law

Law

| 11 | The applicant does not dispute that, at the time it brought the contested claim before EUIPO, the registration of the Polish and German trade marks had expired, as the examiner pointed out in the letter of notification of 10 February 2020. |
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11

The applicant does not dispute that, at the time it brought the contested claim before EUIPO, the registration of the Polish and German trade marks had expired, as the examiner pointed out in the letter of notification of 10 February 2020.

| 12 | In support of the present action, the applicant relies, in essence, on a single plea in law, alleging an error of law by the Board of Appeal resulting from too narrow an interpretation, in paragraph 12 of the contested decision, of Article 40 of Regulation 2017/1001, read in conjunction with Article 39 of that regulation, according to which the earlier identical national mark is to be registered and in force at the time of the seniority claim. That erroneous interpretation led the Board of Appeal wrongly to dismiss the applicant’s appeal, rather than to annul the examiner’s decision dismissing the contested claim and enter that claim for the EU trade mark at issue. |
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12

In support of the present action, the applicant relies, in essence, on a single plea in law, alleging an error of law by the Board of Appeal resulting from too narrow an interpretation, in paragraph 12 of the contested decision, of Article 40 of Regulation 2017/1001, read in conjunction with Article 39 of that regulation, according to which the earlier identical national mark is to be registered and in force at the time of the seniority claim. That erroneous interpretation led the Board of Appeal wrongly to dismiss the applicant’s appeal, rather than to annul the examiner’s decision dismissing the contested claim and enter that claim for the EU trade mark at issue.

| 13 | The applicant maintains, in essence, that the proprietor of the earlier identical national mark registration of which has expired still has the right to claim its seniority for the benefit of any EU trade mark applied for or registered subsequently if, at the time the proprietor files his or her claim, a claim based on the same national mark had been accepted for another EU trade mark.
  ... |
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13

The applicant maintains, in essence, that the proprietor of the earlier identical national mark registration of which has expired still has the right to claim its seniority for the benefit of any EU trade mark applied for or registered subsequently if, at the time the proprietor files his or her claim, a claim based on the same national mark had been accepted for another EU trade mark.

...

| 18 | EUIPO contests the applicant’s arguments and contends that the application should be dismissed as manifestly unfounded. |
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18

EUIPO contests the applicant’s arguments and contends that the application should be dismissed as manifestly unfounded.

| 19 | The single plea put forward by the applicant raises a question of interpretation of Article 40 of Regulation 2017/1001, read in conjunction with Article 39 of that regulation to which it refers, regarding whether the proprietor of an EU trade mark for which a claim of seniority of an earlier identical national mark has been accepted may rely on the fiction that registration of the earlier national mark is maintained for the benefit of another EU trade mark for which a claim of seniority of the earlier national mark has been filed after registration of that latter mark had expired.
  ... |
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19

The single plea put forward by the applicant raises a question of interpretation of Article 40 of Regulation 2017/1001, read in conjunction with Article 39 of that regulation to which it refers, regarding whether the proprietor of an EU trade mark for which a claim of seniority of an earlier identical national mark has been accepted may rely on the fiction that registration of the earlier national mark is maintained for the benefit of another EU trade mark for which a claim of seniority of the earlier national mark has been filed after registration of that latter mark had expired.

...

| 22 | In accordance with settled case-law, in interpreting provisions of EU law, it is necessary to consider not only their wording but also the context in which they occur and the objectives pursued by the rules of which they form part (see judgments of 11 July 2018, COBRA, C‐192/17, EU:C:2018:554, paragraph 29 and the case-law cited, and of 28 January 2020, Commission v Italy (Directive combating late payment), C‐122/18, EU:C:2020:41, paragraph 39 and the case-law cited). |
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22

In accordance with settled case-law, in interpreting provisions of EU law, it is necessary to consider not only their wording but also the context in which they occur and the objectives pursued by the rules of which they form part (see judgments of 11 July 2018, COBRA, C‐192/17, EU:C:2018:554, paragraph 29 and the case-law cited, and of 28 January 2020, Commission v Italy (Directive combating late payment), C‐122/18, EU:C:2020:41, paragraph 39 and the case-law cited).

| 23 | Moreover, it is apparent from the case-law that provisions which constitute a derogation are to be interpreted strictly (see, to that effect and by analogy, judgment of 22 January 2020, Pensionsversicherungsanstalt (Cessation of activity after reaching retirement age), C‐32/19, EU:C:2020:25, paragraph 38 and the case-law cited). Owing to the consequences attaching to the claim of seniority of an earlier identical national mark, under Articles 39 and 40 of Regulation 2017/1001, which derogate from the principle that the proprietor of such a trade mark should lose the rights conferred by that mark in the event of non-renewal of its registration, the conditions to be met for such a claim to be accepted must be interpreted restrictively (see to that effect, as regards the condition that the marks concerned must be identical, judgment of 19 January 2012, Shang v OHIM (justing), T‐103/11, EU:T:2012:19, paragraph 17). |
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23

Moreover, it is apparent from the case-law that provisions which constitute a derogation are to be interpreted strictly (see, to that effect and by analogy, judgment of 22 January 2020, Pensionsversicherungsanstalt (Cessation of activity after reaching retirement age), C‐32/19, EU:C:2020:25, paragraph 38 and the case-law cited). Owing to the consequences attaching to the claim of seniority of an earlier identical national mark, under Articles 39 and 40 of Regulation 2017/1001, which derogate from the principle that the proprietor of such a trade mark should lose the rights conferred by that mark in the event of non-renewal of its registration, the conditions to be met for such a claim to be accepted must be interpreted restrictively (see to that effect, as regards the condition that the marks concerned must be identical, judgment of 19 January 2012, Shang v OHIM (justing), T‐103/11, EU:T:2012:19, paragraph 17).

| 24 | In the present case, it should be pointed out, first, that, under Article 40(1) of Regulation 2017/1001, the earlier identical national mark for which the proprietor of the EU trade mark claims seniority must, according to the various language versions, be a trade mark ‘registered' or ‘which is registered' in a Member State. |
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24

In the present case, it should be pointed out, first, that, under Article 40(1) of Regulation 2017/1001, the earlier identical national mark for which the proprietor of the EU trade mark claims seniority must, according to the various language versions, be a trade mark ‘registered' or ‘which is registered' in a Member State.

| 25 | That wording, in the present tense, clearly indicates that the earlier identical national mark, the seniority of which is claimed for the benefit of the EU trade mark, must be registered at the time the seniority claim is filed. |
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25

That wording, in the present tense, clearly indicates that the earlier identical national mark, the seniority of which is claimed for the benefit of the EU trade mark, must be registered at the time the seniority claim is filed.

| 26 | Therefore, the applicant is not justified in claiming, in essence, that Article 40 of Regulation 2017/1001, read in conjunction with Article 39 of that regulation, merely requires the earlier national mark to have been registered at some point in the past, so as to prevent marks acquired by use being relied upon to support a seniority claim. |
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26

Therefore, the applicant is not justified in claiming, in essence, that Article 40 of Regulation 2017/1001, read in conjunction with Article 39 of that regulation, merely requires the earlier national mark to have been registered at some point in the past, so as to prevent marks acquired by use being relied upon to support a seniority claim.

| 27 | Second, that literal interpretation of Article 40 of Regulation 2017/1001 is confirmed by the context of that article. Under paragraph 4 thereof, that article is to be applied in conjunction with Article 39(3) of the same regulation. It is apparent from the latter provision, as interpreted by the case-law, that the only effect of the claim of seniority of an earlier identical national mark is that the proprietor of the EU mark in respect of which the seniority claim has been accepted will, if he or she surrenders the earlier mark or allows it to lapse, be able to continue to have the same rights as he or she would have had if the earlier trade mark had continued to be registered (judgments of 19 January 2012, justing, T‐103/11, EU:T:2012:19, paragraph 17, and of 20 February 2013, Langguth Erben v OHIM (MEDINET), T‐378/11, EU:T:2013:83, paragraph 28). |
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27

Second, that literal interpretation of Article 40 of Regulation 2017/1001 is confirmed by the context of that article. Under paragraph 4 thereof, that article is to be applied in conjunction with Article 39(3) of the same regulation. It is apparent from the latter provision, as interpreted by the case-law, that the only effect of the claim of seniority of an earlier identical national mark is that the proprietor of the EU mark in respect of which the seniority claim has been accepted will, if he or she surrenders the earlier mark or allows it to lapse, be able to continue to have the same rights as he or she would have had if the earlier trade mark had continued to be registered (judgments of 19 January 2012, justing, T‐103/11, EU:T:2012:19, paragraph 17, and of 20 February 2013, Langguth Erben v OHIM (MEDINET), T‐378/11, EU:T:2013:83, paragraph 28).

| 28 | Thus, the system of claiming seniority of a national trade mark following registration of an EU trade mark, as set out in Article 40 of Regulation 2017/1001, read in conjunction with Article 39(3) of that regulation, is based on the principle that the proprietor of the earlier national mark will not surrender that mark or allow it to lapse before the seniority claim which he or she has filed has been accepted for the EU trade mark; this is based a fortiori on the premiss that, at the date on which that claim is filed, the registration of the earlier identical national mark has not already expired. |
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28

Thus, the system of claiming seniority of a national trade mark following registration of an EU trade mark, as set out in Article 40 of Regulation 2017/1001, read in conjunction with Article 39(3) of that regulation, is based on the principle that the proprietor of the earlier national mark will not surrender that mark or allow it to lapse before the seniority claim which he or she has filed has been accepted for the EU trade mark; this is based a fortiori on the premiss that, at the date on which that claim is filed, the registration of the earlier identical national mark has not already expired.

| 29 | That interpretation of Article 40 of Regulation 2017/1001 is consistent with the practical application of that article by EUIPO, as described in Part B, Section 2, point 13.2 of the EUIPO Examination Guidelines, according to which ‘[EUIPO] must check both that the earlier mark was registered at the time the [EU trade mark] application was filed and that the earlier registration had not lapsed at the time the claim was made' and ‘if the earlier registration had lapsed at the time the claim was made, seniority cannot be claimed, even if the relevant national trade mark law provides for a 6-month ‟grace” period for renewal’. |
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29

That interpretation of Article 40 of Regulation 2017/1001 is consistent with the practical application of that article by EUIPO, as described in Part B, Section 2, point 13.2 of the EUIPO Examination Guidelines, according to which ‘[EUIPO] must check both that the earlier mark was registered at the time the [EU trade mark] application was filed and that the earlier registration had not lapsed at the time the claim was made' and ‘if the earlier registration had lapsed at the time the claim was made, seniority cannot be claimed, even if the relevant national trade mark law provides for a 6-month ‟grace” period for renewal’.

| 30 | Third, that interpretation of Article 40 of Regulation 2017/1001, read in conjunction with Article 39(3) of the same regulation, is consistent with the aim of the system of claiming seniority of a national trade mark following registration of an EU trade mark, which is to enable the proprietors of national trade marks and identical EU trade marks to streamline their trade mark portfolios while maintaining their earlier rights. Once the seniority claim based on the earlier identical national mark has been accepted for the EU trade mark, the proprietor may let the first mark expire, while continuing to enjoy the same rights under the second mark as those which he or she would have had if the first trade mark had continued to be registered (see paragraph 27 above). |
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30

Third, that interpretation of Article 40 of Regulation 2017/1001, read in conjunction with Article 39(3) of the same regulation, is consistent with the aim of the system of claiming seniority of a national trade mark following registration of an EU trade mark, which is to enable the proprietors of national trade marks and identical EU trade marks to streamline their trade mark portfolios while maintaining their earlier rights. Once the seniority claim based on the earlier identical national mark has been accepted for the EU trade mark, the proprietor may let the first mark expire, while continuing to enjoy the same rights under the second mark as those which he or she would have had if the first trade mark had continued to be registered (see paragraph 27 above).

| 31 | In accordance with that aim and as is apparent from the wording of Article 39(3) and (4) of Regulation 2017/1001, which is to be interpreted strictly (see paragraph 23 above), that presumption that the rights attached to an earlier identical national mark will be maintained does not apply generally, as the applicant claims, but only in favour of an identical EU trade mark and in respect of identical goods or services for which the seniority claim has been accepted and in the event of non-renewal of the registration of the earlier identical national mark. |
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31

In accordance with that aim and as is apparent from the wording of Article 39(3) and (4) of Regulation 2017/1001, which is to be interpreted strictly (see paragraph 23 above), that presumption that the rights attached to an earlier identical national mark will be maintained does not apply generally, as the applicant claims, but only in favour of an identical EU trade mark and in respect of identical goods or services for which the seniority claim has been accepted and in the event of non-renewal of the registration of the earlier identical national mark.

| 32 | Accordingly, it is expressly provided that that presumption is not to apply in cases where the national mark concerned is declared invalid or revoked with effect before the date of filing or the date of priority of the EU trade mark. |
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32

Accordingly, it is expressly provided that that presumption is not to apply in cases where the national mark concerned is declared invalid or revoked with effect before the date of filing or the date of priority of the EU trade mark.

| 33 | Moreover, it is apparent from the case-law that that same presumption does not enable the earlier national mark to continue to exist in the same form and that any use of the sign at issue after the cancellation of that mark must be regarded, in such a case, as use of the EU mark and not of the cancelled earlier national mark (judgment of 19 April 2018, Peek & Cloppenburg, C‐148/17, EU:C:2018:271, paragraph 30). This confirms that a seniority claim which has been accepted does not have the effect of ensuring the survival of the earlier national mark concerned or even of merely maintaining certain rights attached to it separately from the EU trade mark for the benefit of which that seniority claim was accepted. |
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33

Moreover, it is apparent from the case-law that that same presumption does not enable the earlier national mark to continue to exist in the same form and that any use of the sign at issue after the cancellation of that mark must be regarded, in such a case, as use of the EU mark and not of the cancelled earlier national mark (judgment of 19 April 2018, Peek & Cloppenburg, C‐148/17, EU:C:2018:271, paragraph 30). This confirms that a seniority claim which has been accepted does not have the effect of ensuring the survival of the earlier national mark concerned or even of merely maintaining certain rights attached to it separately from the EU trade mark for the benefit of which that seniority claim was accepted.

| 34 | That strict interpretation of the scope of the presumption that the rights attached to an earlier identical national mark will be maintained is unaffected by a reading of Article 40 of Regulation 2017/1001 in the light of recital 12 of the same regulation, expressing the objective pursued by that regulation of maintaining the rights acquired by the proprietors of earlier marks. |
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34

That strict interpretation of the scope of the presumption that the rights attached to an earlier identical national mark will be maintained is unaffected by a reading of Article 40 of Regulation 2017/1001 in the light of recital 12 of the same regulation, expressing the objective pursued by that regulation of maintaining the rights acquired by the proprietors of earlier marks.

| 35 | First, while the preamble to an EU measure may explain its content, it cannot be relied upon as a ground for derogating from the actual provisions of the measure (judgment of 10 January 2006, IATA and ELFAA, C‐344/04, EU:C:2006:10, paragraph 76). Accordingly, the content of recital 12 of Regulation 2017/1001 does not allow for derogation from a condition which has been laid down by Article 40 of Regulation 2017/1001, read in conjunction with Article 39(3) of the same regulation, in order for a claim of seniority of an earlier identical national mark to be accepted. Second and in any event, that recital, which refers to the ‘principle of priority, under which a registered earlier trade mark takes precedence over later registered trade marks' is itself based on the notion that the rights acquired by the proprietor of an earlier mark can take precedence over those conferred by later registered trade marks only provided that the earlier trade mark is registered. The content of that recital is therefore consistent with an interpretation of Article 40 of Regulation 2017/1001 according to which the earlier identical national mark of which seniority is claimed must be registered at the moment the seniority claim is filed. |
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35

First, while the preamble to an EU measure may explain its content, it cannot be relied upon as a ground for derogating from the actual provisions of the measure (judgment of 10 January 2006, IATA and ELFAA, C‐344/04, EU:C:2006:10, paragraph 76). Accordingly, the content of recital 12 of Regulation 2017/1001 does not allow for derogation from a condition which has been laid down by Article 40 of Regulation 2017/1001, read in conjunction with Article 39(3) of the same regulation, in order for a claim of seniority of an earlier identical national mark to be accepted. Second and in any event, that recital, which refers to the ‘principle of priority, under which a registered earlier trade mark takes precedence over later registered trade marks' is itself based on the notion that the rights acquired by the proprietor of an earlier mark can take precedence over those conferred by later registered trade marks only provided that the earlier trade mark is registered. The content of that recital is therefore consistent with an interpretation of Article 40 of Regulation 2017/1001 according to which the earlier identical national mark of which seniority is claimed must be registered at the moment the seniority claim is filed.

| 36 | That strict interpretation of the scope of the presumption is likewise unaffected by paragraph 30 of the judgment of 19 April 2018, Peek & Cloppenburg (C‐148/17, EU:C:2018:271), to which the applicant refers. In that judgment, the Court of Justice does not find that the proprietor of the EU trade mark for which the claim of seniority of an earlier identical national mark has been accepted may rely on the fiction that registration of that mark is maintained for the benefit of another EU trade mark, but rather confirms that that fiction has only limited scope (see paragraph 33 above). |
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36

That strict interpretation of the scope of the presumption is likewise unaffected by paragraph 30 of the judgment of 19 April 2018, Peek & Cloppenburg (C‐148/17, EU:C:2018:271), to which the applicant refers. In that judgment, the Court of Justice does not find that the proprietor of the EU trade mark for which the claim of seniority of an earlier identical national mark has been accepted may rely on the fiction that registration of that mark is maintained for the benefit of another EU trade mark, but rather confirms that that fiction has only limited scope (see paragraph 33 above).

| 37 | Lastly, it is also unaffected by Article 139(3) of Regulation 2017/1001, according to which ‘the national trade mark application resulting from the conversion of an EU trade mark application or an EU trade mark shall enjoy in respect of the Member State concerned the date of filing or the date of priority of that application or trade mark and, where appropriate, the seniority of a trade mark of that State claimed under Articles 39 or 40' of that regulation. Maintenance of the rights attached to the earlier identical national mark applies, once again, only for the benefit of the national trade mark application resulting from the conversion of the EU trade mark for which the seniority claim has been accepted. |
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37

Lastly, it is also unaffected by Article 139(3) of Regulation 2017/1001, according to which ‘the national trade mark application resulting from the conversion of an EU trade mark application or an EU trade mark shall enjoy in respect of the Member State concerned the date of filing or the date of priority of that application or trade mark and, where appropriate, the seniority of a trade mark of that State claimed under Articles 39 or 40' of that regulation. Maintenance of the rights attached to the earlier identical national mark applies, once again, only for the benefit of the national trade mark application resulting from the conversion of the EU trade mark for which the seniority claim has been accepted.

| 38 | The applicant therefore cannot successfully claim that Article 40 of Regulation 2017/1001, read in conjunction with Article 39(3) of that regulation, may allow the presumption that the rights attached to the earlier identical national trade mark are to be applied, after the expiry of that mark, for the benefit of an EU trade mark other than the mark for the benefit of which the seniority claim has been accepted, for example in support of a claim of seniority of the earlier national mark for that other EU trade mark. |
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38

The applicant therefore cannot successfully claim that Article 40 of Regulation 2017/1001, read in conjunction with Article 39(3) of that regulation, may allow the presumption that the rights attached to the earlier identical national trade mark are to be applied, after the expiry of that mark, for the benefit of an EU trade mark other than the mark for the benefit of which the seniority claim has been accepted, for example in support of a claim of seniority of the earlier national mark for that other EU trade mark.

| 39 | Thus, the mere fact that the applicant is entitled to rely, for the benefit of the EU trade mark registered under number 340810, on the presumption that the rights attached to the Polish and German trade marks will be maintained even after expiry of their registration, does not mean that it may also rely on that same presumption in support of the contested claim for the EU trade mark at issue. The earlier rights which it invokes in that regard benefit, in principle, only the EU trade mark registered under number 340810, for which the seniority claim in respect of the Polish and German trade marks has been accepted. |
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39

Thus, the mere fact that the applicant is entitled to rely, for the benefit of the EU trade mark registered under number 340810, on the presumption that the rights attached to the Polish and German trade marks will be maintained even after expiry of their registration, does not mean that it may also rely on that same presumption in support of the contested claim for the EU trade mark at issue. The earlier rights which it invokes in that regard benefit, in principle, only the EU trade mark registered under number 340810, for which the seniority claim in respect of the Polish and German trade marks has been accepted.

| 40 | In the light of the foregoing considerations, the Board of Appeal therefore did not err in law in interpreting, in paragraph 12 of the contested decision, Article 40 of Regulation 2017/1001, read in conjunction with Article 39 of that same regulation, as meaning that the earlier identical national mark seniority of which is claimed for the benefit of a later registered EU trade mark must itself be registered and in force at the date on which the seniority claim is filed.
  ... |
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40

In the light of the foregoing considerations, the Board of Appeal therefore did not err in law in interpreting, in paragraph 12 of the contested decision, Article 40 of Regulation 2017/1001, read in conjunction with Article 39 of that same regulation, as meaning that the earlier identical national mark seniority of which is claimed for the benefit of a later registered EU trade mark must itself be registered and in force at the date on which the seniority claim is filed.

...

| | On those grounds,
  THE GENERAL COURT (Second Chamber)
  hereby: |
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On those grounds,

THE GENERAL COURT (Second Chamber)

hereby:

| | 1. | Dismisses the action; |
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1.

1.

Dismisses the action;

Dismisses the action;

| | 2. | Orders Daw SE to pay the costs. |
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2.

2.

Orders Daw SE to pay the costs.

Orders Daw SE to pay the costs.

| | Tomljenović


  Schalin


  Škvařilová-Pelzl


  Delivered in open court in Luxembourg on 6 October 2021.
  [Signatures] |
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Tomljenović

Schalin

Škvařilová-Pelzl

Delivered in open court in Luxembourg on 6 October 2021.

[Signatures]

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(
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  )	Language of the case: German.

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(
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  )	The present judgment is published in extract form.

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(
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  )	Only the paragraphs of the present judgment which the Court considers it appropriate to publish are reproduced here. As regards those paragraphs which are not reproduced, reference is made to the judgment of the General Court of 6 October 2021, Daw v EUIPO (Muresko) (T-32/21, EU:T:...).

2