Judgment — ECLI:EU:T:2010:304
Date: 2010-07-09
Language of the case: English
Court formation: Seventh Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded

summary of the pleas in law on which the application is based. Those matters must be sufficiently clear and precise to enable the defendant to prepare its defence and for the Court to rule on the action, if necessary without having to request further information. In order to ensure legal certainty and the sound administration of justice, it is necessary, for an action to be admissible, that the essential matters of fact and law on which it is based be indicated, at least in summary form, coherently and intelligibly in the application itself (Case C‑214/05 P Rossi v OHIM [2006] ECR I‑7057, paragraph 37, and Case T‑352/94 Mo och Domsjö v Commission [1998] ECR II‑1989, paragraphs 333 and 426). Similar requirements apply where a claim or an argument is relied on in support of a plea in law. The applicant’s argument – which specifies neither the provision of the German Civil Code which the intervener infringed by its use of the abbreviation ‘GmbH & Co. KG’ prior to its registration, nor the consequences which German law would attach to such an infringement – does not satisfy those minimum requirements, since it does not enable OHIM and the intervener to prepare usefully their observations in that regard. In addition, like OHIM, the Court is also unable to identify, on the basis of the argument put forward by the applicant, which provision of the German Civil Code the intervener would have infringed and the consequences of that infringement under the Code. Consequently, that argument is not admissible. 39 The Board of Appeal was thus entitled to take into consideration the documents submitted by the intervener on which the business name at issue appears, followed by the abbreviation ‘GmbH & Co. KG’, with the result that the applicant’s argument in that respect must be rejected. 40 With regard to the probative force of the supporting documents of the transaction concluded by the intervener concerning the import of wheat from Romania to Germany, first, it should be borne in mind that it has already been held in paragraph 28 above that the condition relating to use of the sign relied on in order for Article 8(4) of Regulation No 40/94 to apply means that it is necessary to verify whether that use occurred in the context of a commercial activity with a view to economic advantage and not as a private matter. In that regard, clearly the use of the business name upon the importation of goods from another State is indeed use in the context of a commercial activity with a view to economic advantage. Such use is thus more than just a private matter. 41 Moreover, as is apparent from paragraph 30 above, Article 8(4) of Regulation No 40/94 does not require that the use in the course of trade of the sign upon which the opposition is based must be proved in the territory of the Member State of which the law is invoked. Consequently, as OHIM and the intervener contend, use of the sign in connection with a cross-border commercial transaction, such as that relied on in this case, fulfils the requirements laid down by that provision. In any event, since import-export constitutes a normal, everyday activity of an undertaking, necessarily involving at least two States, it cannot be validly maintained that the use of the intervener’s business name when importing wheat into Germany could not be taken into account to assess whether the business name had indeed been used in the territory of that Member State in the context of a commercial activity with a view to economic advantage and in more than just a private matter. 42 Consequently, the documents referred to in paragraph 33 above could indeed be used to assess the requirement of use of the contested sign in the course of trade. 43 Second, without it being necessary to rule on whether the terms employed in Article 8(4) of Regulation No 40/94 cover the use of the sign or the extent of its protection, it must be held, first, that the documents at issue attest that the significance of the use of the sign at issue is not merely local, since they concern a commercial transaction between Germany and Romania, and, second, that the protection afforded to the sign by the Markengesetz extends throughout German territory. 44 Consequently, the documents at issue were relevant for the purpose of assessing the condition relating to the use of the sign of which the significance is not merely local, with the result that the applicant’s argument in that respect must be rejected. 45 As to the probative value of the intervener’s press release and the newspaper article, the condition relating to use of the sign in the course of trade means that it is necessary to verify that the use occurred in the context of a commercial activity with a view to economic advantage and not as a private matter (see paragraph 28 above). Since the main purpose of a press release issued by an undertaking is to transmit information on that undertaking to its customers and/or potential customers, it constitutes a means of advertising. The fact that the earlier sign at issue appears on advertising material, such as the press release concerned, clearly constitutes, contrary to OHIM’s contentions, use of the sign in the context of a commercial activity with a view to economic advantage and not as a private matter. 46 The documents referred to in paragraph 34 above could thus indeed be used to assess the requirement of use of the sign at issue in the course of trade. 47 As to the condition relating to the use of the sign of which the significance is not merely local, it must be stated, first, that, taken together, those documents confirm that the significance of the use of the sign at issue is not merely local, since a press release is intended, as advertising material, for the greatest possible number of persons. The newspaper article constitutes, in that regard, one of the echoes of that advertising. Second, as already stated in paragraph 43 above, the earlier right relied on for the purposes of the opposition has a significance which is not merely local, since the protection afforded to it by the Markengesetz extends throughout German territory. 48 The Board of Appeal was thus entitled to rely on the press release and the newspaper article in question to assess the condition relating to the use of the sign of which the significance is not merely local, with the result that the applicant’s argument in that respect must be rejected. 49 All the arguments upon which the applicant relies in support of its single plea in law having been rejected, it is necessary to dismiss the action as a whole. Costs 50 Under Article 87(2) 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 OHIM and the intervener. On those grounds, THE GENERAL COURT (Seventh Chamber) hereby: 1. Dismisses the action; 2. Orders Grain Millers, Inc. to pay the costs. Forwood Moavero Milanesi Schwarcz Delivered in open court in Luxembourg on 9 July 2010. [Signatures] * Language of the case: English.