Judgment;Information — ECLI:EU:T:2023:538
Date: 2023-09-13
Language of the case: English
Court formation: Second Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded;Action for annulment - inadmissible
Origin: Austria

summary form, coherently and intelligibly in the application itself (orders of 28 April 1993, De Hoe v Commission, T‑85/92, EU:T:1993:39, paragraph 20, and of 21 May 1999, Asia Motor France and Others v Commission, T‑154/98, EU:T:1999:109, paragraph 49; and judgment of 15 June 1999, Ismeri Europa v Court of Auditors, T‑277/97, EU:T:1999:124, paragraph 29). 74 It follows from the case-law that requirements similar to those set out in the preceding paragraph apply where a claim or an argument is relied on in support of a plea in law (see judgment of 23 February 2022, Lackmann Fleisch- und Feinkostfabrik v EUIPO – Schuju (Хозяйка), T‑185/21, not published, EU:T:2022:89, paragraph 39 and the case-law cited). 75 It must be stated that the applicant’s general assertion that the Board of Appeal infringed the relevant case-law relating to the global assessment of the likelihood of confusion is neither substantiated nor proven. In its written pleadings, the applicant does not develop any specific arguments in that regard or identify the case-law to which it refers. 76 Furthermore, the applicant does not explain how its having tried to restore the previous situation, the existence of other similar marks or ‘the factual reality between the parties’ were, in the present case, to have an impact on the global assessment of the likelihood of confusion. 77 As regards the coexistence of the marks on the Spanish market, it is sufficient to recall that the applicant, as has been held in paragraph 56 above, has not succeeded in proving the coexistence of the earlier marks. 78 As regards the allegedly descriptive character of the marks relied on, it should be recalled that it has been held in paragraph 62 above that the applicant was incorrect to submit that the Board of Appeal should have found that the earlier national mark was descriptive and devoid of distinctive character. 79 Consequently, the sixth plea must be rejected as in part inadmissible and in part unfounded. 80 In the light of all the foregoing considerations, the action must be dismissed in its entirety. Costs 81 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. 82 Since the applicant has been unsuccessful, it must be ordered to pay the costs incurred by the intervener, in accordance with the form of order sought by the latter. By contrast, since EUIPO has requested that the applicant be ordered to pay the costs only in the event that a hearing is convened, EUIPO should be ordered, in the absence of a hearing, to bear its own costs. On those grounds, THE GENERAL COURT (Second Chamber) hereby: 1. Dismisses the action; 2. Orders Prolactal GmbH to bear its own costs and to pay those incurred by Prolàctea, SA; 3. Orders the European Union Intellectual Property Office (EUIPO) to bear its own costs. Marcoulli Tomljenović Norkus Delivered in open court in Luxembourg on 13 September 2023. V. Di Bucci S. Papasavvas Registrar President * Language of the case: English.