# C_2017151EN.01001402.xml

| 15.5.2017 | EN | Official Journal of the European Union | C 151/14 |
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15.5.2017

EN

Official Journal of the European Union

C 151/14

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Appeal brought on 19 January 2017 by Birkenstock Sales GmbH against the judgment of the General Court (Fifth Chamber) delivered on 9 November 2016 in Case T-579/14 Birkenstock Sales GmbH v European Union Intellectual Property Office (EUIPO)

Birkenstock Sales GmbH

European Union Intellectual Property Office (EUIPO)

(Case C-26/17 P)

(2017/C 151/20)

Language of the case: German

Parties

Parties

Appellant: Birkenstock Sales GmbH (represented by: C. Menebröcker, Rechtsanwalt, and V. Töbelmann, Rechtsanwältin)

Appellant:

Other party to the proceedings: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings:

Form of order sought

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment of the General Court of the European Union of 9 November 2016 (Case T-579/14), in so far as it dismissed the appellant’s action; |
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set aside the judgment of the General Court of the European Union of 9 November 2016 (Case T-579/14), in so far as it dismissed the appellant’s action;

| — | grant the claims for registration of the goods in respect of which the appellant’s action was dismissed at first instance before the General Court of the European Union; |
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grant the claims for registration of the goods in respect of which the appellant’s action was dismissed at first instance before the General Court of the European Union;

| — | order EUIPO to pay the costs of the proceedings before the Court of Justice, the General Court and the Board of Appeal. |
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order EUIPO to pay the costs of the proceedings before the Court of Justice, the General Court and the Board of Appeal.

Grounds of appeal and main arguments

Grounds of appeal and main arguments

| 1. | The appellant asks the Court to set aside the judgment of the General Court of 9 November 2016 in Case T-579/14 concerning IR mark No 1132742 in so far as it dismissed the appellant’s action, and to grant the claims relating to the goods in respect of which the appellant’s action was dismissed at first instance before the General Court. |
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1.

The appellant asks the Court to set aside the judgment of the General Court of 9 November 2016 in Case T-579/14 concerning IR mark No 1132742 in so far as it dismissed the appellant’s action, and to grant the claims relating to the goods in respect of which the appellant’s action was dismissed at first instance before the General Court.

| 2. | The appellant first alleges infringement of Article 7(1)(b) of the European Trade Mark Regulation (1) on the ground that the General Court erred in applying the principles governing three-dimensional marks to the IR mark at issue. The appellant also claims that the General Court, in its assessment of the IR mark according to the principles governing three-dimensional marks, did not provide a definition of the ‘standards and usual practices of the sector’ in respect of the goods at issue, and finally that the General Court applied stricter criteria to the assessment of the overall impression of the IR mark than those provided for in Article 7(1)(b) of the Trade Mark Regulation. |
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2.

The appellant first alleges infringement of Article 7(1)(b) of the European Trade Mark Regulation (1) on the ground that the General Court erred in applying the principles governing three-dimensional marks to the IR mark at issue. The appellant also claims that the General Court, in its assessment of the IR mark according to the principles governing three-dimensional marks, did not provide a definition of the ‘standards and usual practices of the sector’ in respect of the goods at issue, and finally that the General Court applied stricter criteria to the assessment of the overall impression of the IR mark than those provided for in Article 7(1)(b) of the Trade Mark Regulation.

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| 3. | The appellant further claims that the judgment of the General Court is contradictory in so far as it was there established that the distinctive character of a sign must be established on the basis of the sign itself, although the General Court considered questions of use in its assessment and, on the issue of whether a sign may be deemed to be used at the same time in a two-dimensional and in a three-dimensional way, referred to one of its own previous judgments. |
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3.

The appellant further claims that the judgment of the General Court is contradictory in so far as it was there established that the distinctive character of a sign must be established on the basis of the sign itself, although the General Court considered questions of use in its assessment and, on the issue of whether a sign may be deemed to be used at the same time in a two-dimensional and in a three-dimensional way, referred to one of its own previous judgments.

| 4. | Furthermore, the appellant alleges a distortion of facts, in so far as it was stated in the judgment under appeal that EUIPO was not required to substantiate its view that the IR mark did not depart significantly from the forms of use normal in the sector, given that the Board of Appeal based its arguments on facts shown by practical experience generally acquired in the marketing of the goods at issue, likely to be known by anyone. |
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4.

Furthermore, the appellant alleges a distortion of facts, in so far as it was stated in the judgment under appeal that EUIPO was not required to substantiate its view that the IR mark did not depart significantly from the forms of use normal in the sector, given that the Board of Appeal based its arguments on facts shown by practical experience generally acquired in the marketing of the goods at issue, likely to be known by anyone.

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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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