Judgment — ECLI:EU:T:2015:974
Date: 2015-12-15
Language of the case: French
Court formation: First Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded
Origin: France

Summary — Judgment of the General Court (First Chamber), 15 December 2015 1. Community trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Genuine use — Use of the mark in a form differing by elements not altering the distinctive character of the mark — Subject-matter and material scope of Article 15(1)(a) of Regulation No 207/2009 — Examination of alteration of distinctive character (Council Regulation No 207/2009, Arts 15(1)(a), and 42(2) and (3)) 2. Community trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Use of the mark in a form differing by elements not altering the distinctive character of the mark — Figurative mark Arthur (Council Regulation No 207/2009, Art. 15(1)(a)) 3. Community trade mark — Decisions of the Office — Legality — Examination by the EU judicature — Criteria (Council Regulation No 207/2009) 4. Community trade mark — Decisions of the Office — Legality — OHIM’s previous decision-making practice — Principle of non-discrimination — Irrelevant (Council Regulation No 207/2009) 1. The purpose of Article 15(1)(a) of Regulation No 207/2009, which avoids imposing strict conformity between the form of the trade mark as used and the form in which the mark was registered, is to allow its proprietor, in the commercial exploitation of the sign, to make variations which, without altering its distinctive character, enable it to be better adapted to the marketing and promotion requirements of the goods or services concerned. In accordance with its purpose, the material scope of that provision must be regarded as limited to situations in which the sign actually used by the proprietor of a trade mark to identify the goods or services in respect of which the mark was registered constitutes the form in which that same mark is commercially exploited. In such situations, where the sign used in trade differs from the form in which it was registered only in insignificant respects, and the two signs can therefore be regarded as broadly equivalent, the abovementioned provision envisages that the obligation to use the trade mark which was registered may be fulfilled by furnishing proof of use of the sign which constitutes the form in which it is used in trade. Therefore, for the sign used to be regarded as not altering the distinctiveness of the mark in its registered form, it is not sufficient that the dominant element in latter be included in that sign. Examination of the alteration of the distinctive character consists in comparing the mark in its registered form with the sign used for the purpose of considering whether or not that mark and that sign differ in insignificant respects and whether they may be considered to be broadly equivalent. (see paras 18, 34) 2. See the text of the decision. (see paras 22-24, 35) 3. See the text of the decision. (see para. 37) 4. See the text of the decision. (see para. 39)