Information;Judgment — ECLI:EU:T:2023:6
Date: 2023-01-18
Language of the case: English
Court formation: Fifth Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded

summary form in the application by putting forward complaints or arguments which are not contained in that application (see, by analogy, judgment of 31 January 2019, Thun v EUIPO (Fish), T‑604/17, not published, EU:T:2019:42, paragraph 46 and the case-law cited). 53 As regards the applicant’s argument disputing the Board of Appeal’s assertion that it had not established the existence of evidence supporting the finding that there was a serious risk that one of the types of injury referred to in Article 8(5) of Regulation No 207/2009 would occur in the future, it must be stated that that argument is itself also substantiated only by references to certain pages of its observations before the Opposition Division. It must therefore be rejected. 54 Lastly, at the hearing, the applicant challenged for the first time the Board of Appeal’s finding that the reputation of the earlier purely figurative mark had not been established. However, it has neither established nor even claimed that that complaint resulted from matters of law or of fact which came to light in the course of the procedure or that the complaint amplified the plea alleging infringement of Article 8(5) of Regulation No 207/2009 or was closely connected with that plea. In that regard, it should be borne in mind that the line of argument set out in the application related only to the earlier composite mark, and not at all to the earlier purely figurative mark. Accordingly, the complaint must be rejected as being inadmissible pursuant to Article 84(1) of the Rules of Procedure of the General Court. 55 Consequently, the Board of Appeal was fully entitled to find that none of the injuries referred to in Article 8(5) of Regulation No 207/2009 had been established, with the result that one of the necessary conditions for the application of that provision was not satisfied. 56 It follows from the foregoing that the second plea in law must be rejected and, accordingly, the action must be dismissed in its entirety. Costs 57 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by EUIPO and the intervener. On those grounds, THE GENERAL COURT (Fifth Chamber) hereby: 1. Dismisses the action; 2. Orders Rolex SA to pay the costs. Spielmann Öberg Brkan Delivered in open court in Luxembourg on 18 January 2023. E. Coulon M. van der Woude Registrar President * Language of the case: English.