Judgment;Information — ECLI:EU:T:2024:578
Date: 2024-09-04
Language of the case: English
Court formation: First Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded

Judgment of the General Court (First Chamber) of 4 September 2024 – Tertianum v EUIPO – DPF (TERTIANUM) (Case T‑73/23) (1) ( EU trade mark – Opposition proceedings – International registration designating the European Union – Figurative mark TERTIANUM – International registration of the earlier figurative mark Tertianum WOHNEN UND LEBEN IM DRITTEN ALTER – Relative ground for refusal – No likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001) – No genuine use of the earlier mark – Article 42(2) and (3) of Regulation No 207/2009 (now Article 47(2) and (3) of Regulation 2017/1001) – Nature of use – Proof of genuine use ) 1. EU trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the earlier mark – Genuine use – Concept – Interpretation taking account of the rationale of Article 42(2) and (3) of Regulation No 207/2009 (Council Regulation No 207/2009, Art. 42(2) and (3)) (see paragraph 21) 2. EU trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the earlier mark – Genuine use – Concept – Criteria for assessment (Council Regulation No 207/2009, Art. 42(2) and (3); Commission Regulation 2018/625, Art. 10(3)) (see paragraphs 22, 23, 25, 47, 48) 3. EU trade mark – Lodging of application for EU trade mark – Identification of the goods or services concerned by the trade mark – Use of the general indications in the headings of the classes of the Nice classification – Scope (see paragraphs 45, 49, 50, 63-67) 4. EU trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the earlier mark – Identification of the goods or services concerned by the trade mark – Requirements of clarity and precision – Determination, by the competent authorities and the economic operators, of the extent of the protection conferred by the trade mark – Limits – Observance of the principles of predictability and legal certainty – Interpretation leading to an absurd result not permissible (Council Regulation No 207/2009, Art. 42(2) and (3)) (see paragraph 87) Operative part The Court: 1. Dismisses the action; 2. Orders Tertianum AG to pay the costs. 1 OJ C 121, 3.4.2023.