# C_2023054EN.01002102.xml

| 13.2.2023 | EN | Official Journal of the European Union | C 54/21 |
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13.2.2023

EN

Official Journal of the European Union

C 54/21

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Action brought on 22 December 2022 — Palírna U Zeleného stromu v EUIPO — Bacardi (B42V)

(Case T-800/22)

(2023/C 54/25)

Language in which the application was lodged: English

Parties

Applicant: Palírna U Zeleného stromu a.s. (Ústí nad Labem, Czech Republic) (represented by: J. Kindl, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Bacardi & Co. Ltd (Meyrin, Switzerland)

Details of the proceedings before EUIPO

Applicant of the trade mark at issue: Applicant before the General Court

Trade mark at issue: Application for European Union trade mark B42V — Application for registration No 17 987 536

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Second Board of Appeal of EUIPO of 3 October 2022 in Case R 1240/2021-2

Form of order sought

The applicant claims that the Court should:

| — | change the contested decision so that






  a. | decision No B 3 077 353 of the Opposition Division of 20 May 2021 is annulled to the extent in which it upheld the opposition filed by the other party to the proceedings before the Board of Appeal against the application of the trade mark at issue; and |
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change the contested decision so that

a.

decision No B 3 077 353 of the Opposition Division of 20 May 2021 is annulled to the extent in which it upheld the opposition filed by the other party to the proceedings before the Board of Appeal against the application of the trade mark at issue; and

| b. | the opposition filed by the other party to the proceedings before the Board of Appeal against the application of the trade mark at issue is rejected in its entirety; |
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b.

the opposition filed by the other party to the proceedings before the Board of Appeal against the application of the trade mark at issue is rejected in its entirety;

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

Pleas in law

| — | The Board of Appeal (and the Opposition Division) erred in applying Art. 47(2) and (3) of Regulation (EU) 2017/1001 of the European Parliament and of the Council by inferring the existence of the genuine use of earlier trade mark No 999 938; the evidence submitted by the other party to the proceedings before the Board of Appeal did not allow the inference of genuine use for any of the earlier trade marks; |
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The Board of Appeal (and the Opposition Division) erred in applying Art. 47(2) and (3) of Regulation (EU) 2017/1001 of the European Parliament and of the Council by inferring the existence of the genuine use of earlier trade mark No 999 938; the evidence submitted by the other party to the proceedings before the Board of Appeal did not allow the inference of genuine use for any of the earlier trade marks;

| — | The Board of Appeal (and the Opposition Division) erred in applying Art. 8(5) of Regulation (EU) 2017/1001 of the European Parliament and of the Council by finding similarity between the trade marks in question; the trade mark at issue and the earlier rights are dissimilar pursuant to Art. 8(1)(b), (4) and (5) of Regulation (EU) 2017/1001 of the European Parliament and of the Council. |
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The Board of Appeal (and the Opposition Division) erred in applying Art. 8(5) of Regulation (EU) 2017/1001 of the European Parliament and of the Council by finding similarity between the trade marks in question; the trade mark at issue and the earlier rights are dissimilar pursuant to Art. 8(1)(b), (4) and (5) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.

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