# C_2022472EN.01004501.xml

| 12.12.2022 | EN | Official Journal of the European Union | C 472/45 |
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12.12.2022

EN

Official Journal of the European Union

C 472/45

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Action brought on 19 October 2022 — Lidl Stiftung v EUIPO — MHCS (Shade of the colour orange)

(Case T-652/22)

(2022/C 472/52)

Language in which the application was lodged: English

Parties

Applicant: Lidl Stiftung & Co. KG (Neckarsulm, Germany) (represented by: M. Kefferpütz and K. Wagner, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: MHCS (Épernay, France)

Details of the proceedings before EUIPO

Proprietor of the trade mark at issue: Other party to the proceedings before the Board of Appeal

Trade mark at issue: European Union trade mark No 747 949

Procedure before EUIPO: Cancellation proceedings

Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 16 August 2022 in Case R 118/2022-4

Form of order sought

The applicant claims that the Court should:

| — | annul the contested decision; |
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annul the contested decision;

| — | order EUIPO and the intervener to bear their own costs; |
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order EUIPO and the intervener to bear their own costs;

| — | order EUIPO to pay the costs incurred by the applicant; |
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order EUIPO to pay the costs incurred by the applicant;

| — | in the alternative, if the trade mark at issue is not declared invalid, refer the case back to the Board of Appeal. |
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in the alternative, if the trade mark at issue is not declared invalid, refer the case back to the Board of Appeal.

Pleas in law

| — | Infringement of Article 4 of Council Regulation (EC) No 40/94 and of Article 94(1) of Regulation (EU) 2017/1001 of the European Parliament and of the Council; |
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Infringement of Article 4 of Council Regulation (EC) No 40/94 and of Article 94(1) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

| — | Inadmissible interpretation of the trade mark at issue by reference to external circumstances; |
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Inadmissible interpretation of the trade mark at issue by reference to external circumstances;

| — | Unlawful disregard of the description provided in defining the subject-matter of the trade mark at issue; |
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Unlawful disregard of the description provided in defining the subject-matter of the trade mark at issue;

| — | Erroneous assumption that the graphic representation as such meets the requirement of Article 4 of Council Regulation (EC) No 40/94; |
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Erroneous assumption that the graphic representation as such meets the requirement of Article 4 of Council Regulation (EC) No 40/94;

| — | Erroneous assumption that EUIPO had set legitimate expectations; |
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Erroneous assumption that EUIPO had set legitimate expectations;

| — | Erroneous determination of the relevant public and its degree of attention; |
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Erroneous determination of the relevant public and its degree of attention;

| — | Incorrect restriction of the relevant market to champagne wines; |
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Incorrect restriction of the relevant market to champagne wines;

| — | Erroneous interpretation of the concept of acquisition of distinctiveness through use and disregard of the relevance of market surveys; |
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Erroneous interpretation of the concept of acquisition of distinctiveness through use and disregard of the relevance of market surveys;

| — | Disregard of relevant observations submitted by the applicant; |
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Disregard of relevant observations submitted by the applicant;

| — | Insufficient basis as far as distinctiveness for Greece, Portugal Luxembourg and Ireland was assumed. |
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Insufficient basis as far as distinctiveness for Greece, Portugal Luxembourg and Ireland was assumed.

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