Order — ECLI:EU:C:2014:812
Date: 2014-05-20
Language of the case: German
Court formation: Seventh Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: Germany

Appeal brought on 22 June 2013 by Reber Holding GmbH & Co. KG against the judgment of the General Court (Fifth Chamber) delivered on 16 May 2013 in Case T-530/10 Reber Holding GmbH & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Case C-414/13 P) Language of the case: German Parties Appellant: Reber Holding GmbH & Co. KG (represented by: O. Spuhler, M. Geitz, lawyers) Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Anna Klusmeier Form of order sought The appellant claims that the Court should: I. Set aside the judgment of the General Court of 16 May 2013 in Case T-530/10 and annul the decision of the Fourth Board of Appeal of OHIM of 14 September 2010 in Case R 363/2008-4; II. In the alternative, set aside the judgment referred to in point I. above and refer the matter back to the General Court; III. Order the respondent to pay the costs of the proceedings. Pleas in law and main arguments By its appeal the appellant puts forward a complaint of infringement of substantive Community law and an incomplete review and assessment of the factual basis. It claims that the General Court incompletely assessed the factual basis in this case which constitutes an error in law (judgment of the Court of Justice in Case C-51/09 P Becker v Harman International Industries 1 ). This may be invoked before the Court of Justice in the context of an appeal (see Case C-317/10 P Union Investment Privatfonds v UniCredito Italiano 2 ). In the judgment under appeal the General Court assumes that the presented declaration in lieu of an oath makes no reference to the further evidence submitted. This assertion is inaccurate. It is clear from the declaration that reference is made to the further evidence attached. Therefore, the General Court did not fully review and assess the declaration. This therefore concerns an error in law in the judgment under appeal, which may be raised at the appeal stage. If the General Court had fully reviewed and assessed the evidence before it, then it would have found genuine use of both of the marks cited in opposition pursuant to the first sentence of Article 42(2) and of Article 42(3) of the Community trade mark Regulation 3 (Regulation No 40/94). Consequently the judgment under appeal also infringes the first sentence of Article 42(2) and of Article 42(3) of Regulation No 40/94. In addition, the judgment under appeal also infringes Article 15(1) and (2)(a) of Regulation No 40/94. The General Court erred in law by stating that mark No 115 1 678 cited in opposition, ‘W. Amadeus Mozart’ is not used as a mark. ____________ 1 [2010] ECR I-5805. 2 [2011] ECR I-5471. 3 Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark, OJ 1994 L 11, p. 1.