# C_2018152EN.01000502.xml

| 30.4.2018 | EN | Official Journal of the European Union | C 152/5 |
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30.4.2018

EN

Official Journal of the European Union

C 152/5

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Appeal brought on 26 January 2018 by Toontrack Music AB against the judgment of the General Court (Ninth Chamber) delivered on 22 November 2017 in Case T-771/16, Toontrack Music AB v European Union Intellectual Property Office

(Case C-48/18 P)

(2018/C 152/07)

Language of the case: Swedish

Parties

Parties

Appellant: Toontrack Music AB (represented by: L.-E. Ström, advokat)

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, putting forward three different grounds of appeal, claims that the Court should

| — | set aside the judgment under appeal; |
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set aside the judgment under appeal;

| — | principally, rule definitively in the case by upholding the claims made before the General Court; |
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principally, rule definitively in the case by upholding the claims made before the General Court;

| — | in the alternative, refer the case back to the General Court; and |
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in the alternative, refer the case back to the General Court; and

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

Pleas in law and main arguments

Pleas in law and main arguments

| 1. | The grounds for the appellant’s claim are that the judgment under appeal, as alleged under the first ground of appeal, runs counter to the applicable law in application of Article 7(1)(b), 7(1)(c) and 7(2), under the second ground of appeal, to Article 76 and under the third ground of appeal to Articles 65 and 75 of Council Regulation (EC) No 207/2009 (1) of 26 February 2009 on the European Union trade mark, as amended (replaced by Regulation (EU) 2017/1001 (2) of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (‘the regulation’)). |
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1.

The grounds for the appellant’s claim are that the judgment under appeal, as alleged under the first ground of appeal, runs counter to the applicable law in application of Article 7(1)(b), 7(1)(c) and 7(2), under the second ground of appeal, to Article 76 and under the third ground of appeal to Articles 65 and 75 of Council Regulation (EC) No 207/2009 (1) of 26 February 2009 on the European Union trade mark, as amended (replaced by Regulation (EU) 2017/1001 (2) of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (‘the regulation’)).

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| 2. | The first ground of appeal alleges that the judgment under appeal is incorrect, since the General Court was incorrect to find that the application for registration of EU trade mark No 13 945 423 EZMIX is descriptive for the purposes of Article 7(1)(c) of the regulation and was not sufficiently distinctive for the purpose of Article 7(1)(b) and 7(2) of the regulation. Since EZMIX in its entirety is a distinctive sign, the General Court erred in finding that there were grounds for refusal under the regulation. The General Court failed to have regard to all the relevant facts of the case concerning the application’s significance, use and association as regards the relevant public. The General Court thus erred in law. |
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2.

The first ground of appeal alleges that the judgment under appeal is incorrect, since the General Court was incorrect to find that the application for registration of EU trade mark No 13 945 423 EZMIX is descriptive for the purposes of Article 7(1)(c) of the regulation and was not sufficiently distinctive for the purpose of Article 7(1)(b) and 7(2) of the regulation. Since EZMIX in its entirety is a distinctive sign, the General Court erred in finding that there were grounds for refusal under the regulation. The General Court failed to have regard to all the relevant facts of the case concerning the application’s significance, use and association as regards the relevant public. The General Court thus erred in law.

first ground of appeal

| 3. | The second ground of appeal alleges that the General Court also erred in law in failing to have regard to Article 86 of the regulation and by distorting the evidence. The General Court presumes that ease is a major selling point in connection with music recording equipment and software and is one of the key factors. The General Court has incorrectly applied Article 76 such that the evidence in the case has been distorted. Deficiencies in the examination have led to an unsubstantiated and incorrect conclusion which is unsupported by the facts being given decisive meaning in the General Court’s resulting judgment. |
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3.

The second ground of appeal alleges that the General Court also erred in law in failing to have regard to Article 86 of the regulation and by distorting the evidence. The General Court presumes that ease is a major selling point in connection with music recording equipment and software and is one of the key factors. The General Court has incorrectly applied Article 76 such that the evidence in the case has been distorted. Deficiencies in the examination have led to an unsubstantiated and incorrect conclusion which is unsupported by the facts being given decisive meaning in the General Court’s resulting judgment.

second ground of appeal

| 4. | The third ground of appeal alleges that the General Court has disregarded Articles 65 and 75 of the regulation and thereby erred in law in failing to given the appellant the opportunity to present oral argument as to the fact underlying the judgment under appeal and the decision of the Board of Appeal of EUIPO. |
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4.

The third ground of appeal alleges that the General Court has disregarded Articles 65 and 75 of the regulation and thereby erred in law in failing to given the appellant the opportunity to present oral argument as to the fact underlying the judgment under appeal and the decision of the Board of Appeal of EUIPO.

third ground of appeal

| 5. | The fact was presented for the first time in the decision of the Board of Appeal of EUIPO, was not substantiated by EUIPO and was sprung upon the appellant. Accordingly, it was possible for the evidence which the appellant adduced to counter the validity of that fact to be considered for the first time only before the General Court and it was thus made impossible for the appellant to provide complete evidence, contrary to the principle of equal arms. |
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5.

The fact was presented for the first time in the decision of the Board of Appeal of EUIPO, was not substantiated by EUIPO and was sprung upon the appellant. Accordingly, it was possible for the evidence which the appellant adduced to counter the validity of that fact to be considered for the first time only before the General Court and it was thus made impossible for the appellant to provide complete evidence, contrary to the principle of equal arms.

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(1)  OJ 2009 L 78, p. 1.

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(2)  OJ 2017 L 154, p. 1.

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