# C_2019263EN.01002302.xml

| 5.8.2019 | EN | Official Journal of the European Union | C 263/23 |
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5.8.2019

EN

Official Journal of the European Union

C 263/23

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Appeal brought on 19 February 2019 by Dovgan GmbH against the judgment of the General Court (First Chamber) delivered on 13 December 2018 in Case T-830/16 Monolith Frost GmbH v European Union Intellectual Property Office (EUIPO)

(Case C-142/19 P)

(2019/C 263/29)

Language of the case: German

Parties

Appellant: Dovgan GmbH (represented by: C. Rohnke, Rechtsanwalt)

Other parties to the proceedings: European Union Intellectual Property Office (EUIPO), Monolith Frost GmbH

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment of the General Court (First Chamber) of the European Union of 13 December 2018 in Case T-830/16; |
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set aside the judgment of the General Court (First Chamber) of the European Union of 13 December 2018 in Case T-830/16;

| — | further, dismiss the action at first instance. |
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further, dismiss the action at first instance.

Grounds of appeal and main arguments

The appellant invokes errors in law in the form of infringements of EU law and distortion of the clear sense of the evidence.

| 1. | Distortion of the clear sense of the evidence

  Contrary to the statement of the General Court in paragraph 55 of the judgment under appeal, the Amtsgericht Köln (Local Court, Cologne, Germany) did not find that a significant proportion of the population of Germany speaks Russian.
  Contrary to the statement of the General Court in paragraph 64 of the judgment under appeal, the Board of Appeal did call into question the decision of the Cancellation Division of EUIPO to the effect that ‘пломбир’ (‘plombir’) was used in the former USSR as a name of a type of ice cream. |
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1.

Distortion of the clear sense of the evidence

Contrary to the statement of the General Court in paragraph 55 of the judgment under appeal, the Amtsgericht Köln (Local Court, Cologne, Germany) did not find that a significant proportion of the population of Germany speaks Russian.

Contrary to the statement of the General Court in paragraph 64 of the judgment under appeal, the Board of Appeal did call into question the decision of the Cancellation Division of EUIPO to the effect that ‘пломбир’ (‘plombir’) was used in the former USSR as a name of a type of ice cream.

| 2. | Infringement of Article 85(3) of the Rules of Procedure of the General Court

  The General Court infringed Article 85(3) of its Rules of Procedure as it wrongly failed to take into consideration the decision of the Bundesgerichtshof (Federal Court of Justice, Germany) of 6 July 2017 put before it by the intervener. The fact that the decision was put before the General Court only during the oral procedure was justified by the date of that decision. In addition, this constituted evidence in rebuttal under Article 92(7) of the Rules of Procedure of the General Court. |
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2.

Infringement of Article 85(3) of the Rules of Procedure of the General Court

The General Court infringed Article 85(3) of its Rules of Procedure as it wrongly failed to take into consideration the decision of the Bundesgerichtshof (Federal Court of Justice, Germany) of 6 July 2017 put before it by the intervener. The fact that the decision was put before the General Court only during the oral procedure was justified by the date of that decision. In addition, this constituted evidence in rebuttal under Article 92(7) of the Rules of Procedure of the General Court.

| 3. | Infringement of Article 85(1) of the Rules of Procedure of the General Court

  In paragraph 69 of the judgment under appeal, the General Court wrongly made reference to the applicant’s Annexes K16 and K17. The applicant put those annexes before the General Court out of time and therefore, under Article 85(1) of the Rules of Procedure, they should not have been allowed to be taken into consideration. |
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3.

Infringement of Article 85(1) of the Rules of Procedure of the General Court

In paragraph 69 of the judgment under appeal, the General Court wrongly made reference to the applicant’s Annexes K16 and K17. The applicant put those annexes before the General Court out of time and therefore, under Article 85(1) of the Rules of Procedure, they should not have been allowed to be taken into consideration.

| 4. | Infringement of the obligation to state reasons

  The judgment under appeal does not contain sufficient reasoning as to why the General Court accepted the assertion that in the Baltic states a significant proportion of citizens know the meaning of the Russian word ‘пломбир’. In particular, there is a lack of a finding that it is a basic vocabulary word that is also understood by those for whom Russian is not their mother tongue.
  The judgment under appeal (in particular paragraphs 64 and 65) also contains insufficient reasoning as to why ‘пломбир’ did not refer to a fancy name or trade mark for a product in the former USSR.
  Finally, the judgment under appeal (paragraph 66) provided no justification as to why the mere mention of a term in the GOST set of technical standards should allow it to be assumed that it is a ‘common word’ in Russian and why this set of standards should be known by the relevant public in the European Union. |
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4.

Infringement of the obligation to state reasons

The judgment under appeal does not contain sufficient reasoning as to why the General Court accepted the assertion that in the Baltic states a significant proportion of citizens know the meaning of the Russian word ‘пломбир’. In particular, there is a lack of a finding that it is a basic vocabulary word that is also understood by those for whom Russian is not their mother tongue.

The judgment under appeal (in particular paragraphs 64 and 65) also contains insufficient reasoning as to why ‘пломбир’ did not refer to a fancy name or trade mark for a product in the former USSR.

Finally, the judgment under appeal (paragraph 66) provided no justification as to why the mere mention of a term in the GOST set of technical standards should allow it to be assumed that it is a ‘common word’ in Russian and why this set of standards should be known by the relevant public in the European Union.

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