# C_2013313EN.01001302.xml

| 26.10.2013 | EN | Official Journal of the European Union | C 313/13 |
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26.10.2013

EN

Official Journal of the European Union

C 313/13

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Appeal brought on 27 August 2013 by Repsol, SA against the judgment of the General Court (Seventh Chamber) delivered on 27 June 2013 in Case T-89/12 Repsol YPF v OHIM — Ajuntament de Roses ®

(Case C-466/13 P)

2013/C 313/23

Language of the case: Spanish

Parties

Parties

Appellant: Repsol, SA (represented by: L. Montoya Terán and J. Devaureix, abogados)

Appellant:

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings:

Form of order sought

Form of order sought

The appellant claims that the Court of Justice should:

| — | set aside in its entirety the judgment of the General Court of 27 June 2013 in Case T-89/12, notified on 28 June 2013; |
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set aside in its entirety the judgment of the General Court of 27 June 2013 in Case T-89/12, notified on 28 June 2013;

| — | uphold all of the forms of order sought at first instance; |
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uphold all of the forms of order sought at first instance;

| — | order the respondent to pay the costs. |
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order the respondent to pay the costs.

Ground of appeal and main arguments

Ground of appeal and main arguments

| 1. | In relation to a certain practice of OHIM in registering marks and of the case-law of the General Court, corrective action is required which applies in an effective manner the reciprocal relationship between the distinctive character of an earlier mark and its scope of protection. |
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1.

In relation to a certain practice of OHIM in registering marks and of the case-law of the General Court, corrective action is required which applies in an effective manner the reciprocal relationship between the distinctive character of an earlier mark and its scope of protection.

| 2. | In the judgment under appeal, the General Court contradicted itself in its reasoning and the conclusions which it reached in relation to the lack of similarity between the signs (it considered that they have more differences than similarities, though recognised that they are similar) and the weak or lack of distinctiveness of the earlier mark (it considered that it was a weak mark, but failed to take account of that weakness when assessing whether there was a likelihood of confusion). |
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2.

In the judgment under appeal, the General Court contradicted itself in its reasoning and the conclusions which it reached in relation to the lack of similarity between the signs (it considered that they have more differences than similarities, though recognised that they are similar) and the weak or lack of distinctiveness of the earlier mark (it considered that it was a weak mark, but failed to take account of that weakness when assessing whether there was a likelihood of confusion).

| 3. | The General Court ignored the fact that the essential and distinctive characteristics of the opposing mark (capital letter ‘R’ inside a circle) cannot be monopolised by any third party. Consequently, the requirement that usual signs be made available on the market has not been respected. |
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3.

The General Court ignored the fact that the essential and distinctive characteristics of the opposing mark (capital letter ‘R’ inside a circle) cannot be monopolised by any third party. Consequently, the requirement that usual signs be made available on the market has not been respected.

| 4. | The General Court failed to take account of judgments of the Spanish Supreme Court in similar cases. Account should be taken of those cases since they adopt the point of view of the relevant consumer, namely the Spanish consumer. |
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4.

The General Court failed to take account of judgments of the Spanish Supreme Court in similar cases. Account should be taken of those cases since they adopt the point of view of the relevant consumer, namely the Spanish consumer.

| 5. | It is clear from the above that the judgment of the General Court is vitiated by legal errors. It must thus be set aside in accordance with the form of order sought. |
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5.

It is clear from the above that the judgment of the General Court is vitiated by legal errors. It must thus be set aside in accordance with the form of order sought.

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