Opinion of the Advocate General — ECLI:EU:C:2009:634
Date: 2009-10-15
Language of the case: French
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment;Appeal - unfounded
Origin: France

Summary of the Judgment Community trade mark – Surrender, revocation and invalidity – Declaration of invalidity based on an absolute ground for invalidity – Interest in bringing proceedings (Council Regulation No 40/94, Art. 55(1)(a)) The right to apply to the Office for Harmonisation in the Internal Market (Trade Marks and Designs) for a declaration of invalidity of a Community trade mark is not subject to the rules of admissibility applicable to judicial proceedings and specific thereto. Thus, an application for a declaration of invalidity under Article 55(1)(a) of Regulation No 40/94 on the Community trade mark is an administrative procedure and not a court action. Therefore, the case‑law concerning Article 230 EC is not relevant either directly or by analogy. As to whether Article 55(1)(a) of the regulation makes the admissibility of an application for a declaration of invalidity subject to the establishment of an interest in bringing proceedings, it is not disputed that that provision makes no reference to an interest in bringing proceedings. In addition, that provision provides that an application for a declaration of invalidity based on an absolute ground for invalidity may be submitted by any natural or legal person and any group or body set up for the purpose of representing the interests of manufacturers, producers, suppliers of services, traders or consumers, which has the capacity in its own name to sue and be sued, whereas Article 55(1)(b) and (c) of the regulation, concerning applications for a declaration of invalidity based on a relative ground for invalidity, reserves the right to make such an application to certain specific persons who have an interest in bringing proceedings. Thus, it is apparent from the scheme of that article that the legislature intended to restrict the group of persons able to apply for a declaration of invalidity in the latter case, but not in the former. Finally, whereas relative grounds for refusal of registration protect the interests of proprietors of certain earlier rights, the absolute grounds for refusal of registration aim to protect the general interest underlying them, which explains why Article 55(1)(a) does not require the applicant to show an interest in bringing proceedings. Moreover, Article 55(1)(a) of the regulation must not be interpreted as requiring there to be an actual or potential economic interest in cancellation of a contested mark in order for it to be possible to apply to OHIM for a declaration of invalidity of that mark. Such an interpretation is not borne out by the reference made in that provision to groups or bodies set up for the purpose of representing the interests of manufacturers, producers, suppliers of services, traders or consumers, which under the terms of the law governing them have the capacity to sue and be sued. That list, which also contains consumers to whom an economic interest cannot generally be attributed, seeks merely to include, in the list of persons who may apply to OHIM for a declaration of invalidity under that provision, groups and bodies of that nature which, although they have the capacity to bring proceedings in accordance with the law governing them, do not have legal personality. (see paras 36-42)