Information;Judgment — ECLI:EU:T:2020:470
Date: 2020-10-05
Language of the case: German
Court formation: Fifth Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded
Origin: Germany

Judgment of the General Court (Fifth Chamber) of 5 October 2020 – nanoPET Pharma v EUIPO – Miltenyi Biotec (viscover) (Case T‑264/19) (EU trade mark – Invalidity proceedings – EU figurative mark viscover – Absence of bad faith – Article 52(1)(b) of Regulation (EC) No 207/2009 (now Article 59(1)(b) of Regulation (EU) No 2017/1001) – Article 53(2)(c) of Regulation No 207/2009 (now Article 60(2)(c) of Regulation 2017/1001)) 1. EU trade mark – Appeals procedure – Action before the EU judicature – Jurisdiction of the General Court – Review of the lawfulness of decisions of the Boards of Appeal – Re-examination of the facts in the light of evidence not previously submitted before EUIPO bodies – Precluded (European Parliament and Council Regulation 2017/1001, Art. 72) (see para. 19) 2. EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Applicant in bad faith when lodging the trade mark application – Criteria for assessment – Taking into account of all relevant factors at the time of filing the application for registration – Applicant’s knowledge that a third party is using an identical or similar sign – Intention of the applicant – Degree of legal protection of the signs at issue – Commercial logic underlying the registration of the contested sign as an EU trade mark – Chronology of events characterising the filing of the trade mark application – Origin of the sign at issue and its use since its creation (Council Regulation No 207/2009, Art. 52(1)(b)) (see paras 32-39) 3. EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Applicant in bad faith when lodging the trade mark application – Figurative mark viscover (Council Regulation No 207/2009, Art. 52(1)(b)) (see paras 64, 65, 72, 84, 94) 4. EU trade mark – Surrender, revocation and invalidity – Invalidity action based on the existence of an earlier national right – Burden of proof (Council Regulation No 207/2009, Art. 53(2)(c); Commission Regulation No 2868/95, Art. 1, Rule 37) (see para. 93) 5. EU trade mark – Surrender, revocation and invalidity – Examination of the application – Proof of use of the earlier mark – Probative value of the evidence – Criteria for assessment (Council Regulation No 207/2009, Art. 57(2) and (3)) (see para. 97) Re: Action brought against the decision of the Fifth Board of Appeal of EUIPO of 17 January 2019 (Case R 1288/2017-5), concerning invalidity proceedings between nanoPET Pharma and Miltenyi Biotec. Operative part The Court: 1. Dismisses the action; 2. Orders nanoPET Pharma GmbH to pay the costs.