# C_2019016EN.01002701.xml

| 14.1.2019 | EN | Official Journal of the European Union | C 16/27 |
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14.1.2019

EN

Official Journal of the European Union

C 16/27

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Appeal brought on 15 August 2018 by Xabier Uribe-Etxebarría Jiménez against the judgment of the General Court (First Chamber) delivered on 29 May 2018 in Case T-577/15, Xabier Uribe-Etxebarría Jiménez v EUIPO — Núcleo de comunicaciones y control, S.L.

(Case C-534/18 P)

(2019/C 16/34)

Language of the case: Spanish

Parties

Appellant: Xabier Uribe-Etxebarría Jiménez (represented by: M. Esteve Sanz, abogada)

Other parties to the proceedings: European Union Intellectual Property Office and Núcleo de comunicaciones y control, S.L.

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment under appeal in so far as it dismisses the first plea in law of the appellant’s action before the General Court and in so far as it dismisses in part the third plea in law of that action; |
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set aside the judgment under appeal in so far as it dismisses the first plea in law of the appellant’s action before the General Court and in so far as it dismisses in part the third plea in law of that action;

| — | grant the form of order sought under the first plea in law of the appellant’s action before the General Court or, in the alternative, grant the form of order sought under the third plea in law of that action; |
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grant the form of order sought under the first plea in law of the appellant’s action before the General Court or, in the alternative, grant the form of order sought under the third plea in law of that action;

| — | order EUIPO and the intervener to pay all of the appellant’s costs incurred before the General Court and in the context of this appeal. |
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order EUIPO and the intervener to pay all of the appellant’s costs incurred before the General Court and in the context of this appeal.

Grounds of appeal and main arguments

The
  first ground of appeal
  , which is divided into six sub-grounds, is brought against the grounds of the judgment under appeal which, having found that the Board of Appeal was fully entitled to disregard the supplementary written pleading submitted within the time limit by the appellant before the Board of Appeal of EUIPO, dismissed the appellant’s first plea in law before the General Court alleging that the decision of the Board of Appeal of EUIPO infringed Articles 63(1), 64(1) and 76(1) of Regulation (EC) 207/2009. (1)

The first sub-ground alleges infringement of Article 36 of the Statute of the Court of Justice and of Article 81 of the Rules of Procedure of the General Court, on the ground that there was a failure by the General Court to state reasons when, in the judgment under appeal, there was no ruling on the argument, developed by the appellant at the hearing, that the line of argument developed by EUIPO in its response is inadmissible.

The second sub-ground alleges: (i) infringement of Article 36 of the Statute of the Court of Justice and of Article 81 of the Rules of Procedure of the General Court, on the ground that the General Court failed to fulfil its obligation to find of its own motion that the contested decision had failed to state reasons regarding the grounds on which the appellant’s request to have reanalysed the proof of use submitted before the Cancellation Division was not taken into account; (ii) infringement of the appellant’s rights of defence in that the judgment under appeal accepted the ex novo reasoning developed by EUIPO in its response, instead of the Court finding of its own motion that the decision of the Board of Appeal failed to state reasons; (iii) distortion of the facts when the judgment under appeal found that the Board of Appeal was fully entitled to disregard the appellant’s written pleading, in spite of the fact that the Board of Appeal did not disregard that pleading.

The third sub-ground alleges distortion of the facts and, specifically, distortion of the arguments in the statement of grounds of appeal (initial and supplementary) submitted by the appellant before the Board of Appeal of EUIPO.

The fourth sub-ground alleges infringement of Articles 63(1), 64(1), 76(1) and 57(2) of Regulation (EC) 207/2009, in that the judgment under appeal misinterpreted those articles, thereby validating the Board of Appeal’s non-adjudication on a claim of the appellant which was debated before the Board of Appeal.

The fifth sub-ground alleges infringement of Article 64 of Regulation (EC) 207/2009, in so far as the judgment under appeal found that, whilst the issue of the actual use of the earlier mark was not specifically raised before the Board of Appeal, that issue does not constitute a point of law which must necessarily be examined by that Board of Appeal in order to reach a decision in the case before it.

The sixth sub-ground alleges infringement of Articles 64 and 60 of Regulation (EC) 207/2009 and Rule 49(1) of Regulation 2868/95 (2) in that the General Court applied to the present case the case-law relating to those two articles, which govern the admissibility of appeals before the Board of Appeal of EUIPO, when, in the present case, the appeal had not been declared inadmissible by the Board of Appeal and, even if it had been, that finding would have infringed those articles, since the written pleadings submitted by the appellant were not declared inadmissible.

The
  second ground of appeal
  is brought against the ground of the judgment under appeal dismissing in part the third plea in law before the General Court alleging that the decision of the Board of Appeal of EUIPO infringed Article 8 of Regulation (EC) 207/2009, and is divided into two sub-grounds.

The first sub-ground alleges infringement of Article 36 of Statute of the Court of Justice and of Article 81 of the Rules of Procedure of the General Court, on the ground that the judgment under appeal failed to state reasons by not explaining the significance which it decided to attach to the findings in the decisions of the Cancellation Division and the Board of Appeal of EUIPO on the goods in respect of which the earlier trade mark was to be considered registered. It is also alleged that those findings were distorted when the significance which the judgment under appeal attached to the findings in those decisions is contrasted with the arguments of the parties and the organisation of procedure.

The second sub-ground alleges infringement of Article 8 of Regulation 207/2009 in so far as the judgment under appeal finds that the services in Class 42 of the trade mark at issue and the goods in respect of which the earlier trade mark has been considered registered are similar.

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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).

(2)  Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).

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