# C_2019220EN.01001601.xml

| 1.7.2019 | EN | Official Journal of the European Union | C 220/16 |
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1.7.2019

EN

Official Journal of the European Union

C 220/16

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Appeal brought on 18 February 2019 by Vans, Inc. against the judgment of the General Court (Ninth Chamber) delivered on 6 December 2018 in Case T-817/16, Vans, Inc. v European Union Intellectual Property Office (EUIPO)

(Case C-123/19 P)

(2019/C 220/21)

Language of the case: German

Parties

Appellant: Vans, Inc. (represented by: M. Hirsch and M. Metzner, Rechtsanwälte)

Other parties to the proceedings: European Union Intellectual Property Office (EUIPO), Deichmann SE

Form of order sought

The appellant claims that the Court should:

| 1. | set aside the judgment of the General Court of the European Union (Ninth Chamber) of 6 December 2018 in Case T-817/16, annul the decision of the Fourth Board of Appeal of 21 September 2016 in Case R2030/2015-4 and reject the opposition in its entirety; |
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1.

set aside the judgment of the General Court of the European Union (Ninth Chamber) of 6 December 2018 in Case T-817/16, annul the decision of the Fourth Board of Appeal of 21 September 2016 in Case R2030/2015-4 and reject the opposition in its entirety;

| 2. | order EUIPO to pay the costs of the proceedings. |
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2.

order EUIPO to pay the costs of the proceedings.

Grounds of appeal and main arguments

The General Court incorrectly proceeded on the basis that the intervener had sufficiently substantiated the earlier mark; in particular, the General Court interpreted the concept of ‘equivalent document’ under Rule 19(2)(a)(ii) of Regulation (EC) No 2868/95 (1) (now Article 7(2)(a)(ii) of Delegated Regulation (EU) 2018/625) (2) too broadly;

| — | Contrary to what the General Court found, an extract from the TMView database is not an ‘equivalent document’ within the meaning of Rule 19(2)(a)(ii) of Regulation No 2868/95; this is apparent, first, from the clear wording of the provision, which refers, in respect of authorised equivalent documents, to the nature, not the origin, of the document, and, second, from the rationale behind the provision; |
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Contrary to what the General Court found, an extract from the TMView database is not an ‘equivalent document’ within the meaning of Rule 19(2)(a)(ii) of Regulation No 2868/95; this is apparent, first, from the clear wording of the provision, which refers, in respect of authorised equivalent documents, to the nature, not the origin, of the document, and, second, from the rationale behind the provision;

| — | Nor can an extract from TMView be established as substantiating evidence on the basis of the properties of the database; |
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Nor can an extract from TMView be established as substantiating evidence on the basis of the properties of the database;

| — | The opposition would therefore have to be rejected simply because the earlier right was not substantiated; |
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The opposition would therefore have to be rejected simply because the earlier right was not substantiated;

| — | Furthermore, the General Court incorrectly proceeded on the basis that there is a likelihood of confusion between the signs at issue; in particular, while the General Court noted the existing differences between the signs, it did not consider them any further when assessing the visual similarity of the signs, but merely stated generally and without further reasoning that the signs were visually similar to an average degree. |
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Furthermore, the General Court incorrectly proceeded on the basis that there is a likelihood of confusion between the signs at issue; in particular, while the General Court noted the existing differences between the signs, it did not consider them any further when assessing the visual similarity of the signs, but merely stated generally and without further reasoning that the signs were visually similar to an average degree.

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(1)  Commission Regulation of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ L 303, 15.12.1995, p. 1).

(2)  Commission Regulation of 5 March 2018 supplementing Regulation (EU) 2017/1001 of the European Parliament and of the Council on the European Union trade mark, and repealing Delegated Regulation (EU) 2017/1430 (OJ L 104, 24.4.2018, p. 1).

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