Keywords

Summary



Keywords

1. Appeals – Response

(Statute of the Court of Justice, Art. 61; Rules of Procedure of the Court, Art. 116(1))

2. Appeals – Grounds – Mistaken assessment of the facts – Inadmissibility – Review by the Court of the assessment of the evidence – Possible only where the clear sense of the evidence has been distorted

(Art. 225 EC; Statute of the Court of Justice, Art. 58, first para.)

3. Community trade mark – Appeals procedure

(Council Regulation No 40/94, Art. 63)

4. Community trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the earlier mark

(Council Regulation No 40/94, Art. 43(2))

Summary

1. When a party has obtained full satisfaction before the Court of First Instance and, in its response before the Court of Justice, seeks to have the appeal dismissed in its entirety, it is not necessary for it to seek the same form of order as that sought at first instance. Moreover, if the Court of Justice allows the appeal and, exercising the option open to it under Article 61 of the Statute of the Court of Justice, decides to give final judgment in the matter itself, it will be required to take account of that form of order, either to grant it again, in whole or in part, or to dismiss it, but cannot justify that dismissal on the ground that the party concerned did not seek the same form of order before it.

(see para. 32)

2. Under Article 225(1) EC and the first paragraph of Article 58 of the Statute of the Court of Justice, an appeal lies on a point of law only. The Court of First Instance thus has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and the assessment of that evidence thus do not, save where the facts and evidence are distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal.

(see paras 49, 88)

3. In the context of an appeal against a decision of a Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), the Court of First Instance may annul or alter the contested decision only if, at the time the decision was adopted, it was vitiated by one of the grounds for annulment or alteration provided for by Article 63 of Regulation No 40/94 on the Community trade mark, namely lack of competence, infringement of an essential procedural requirement, infringement of the Treaty, of Regulation No 40/94 or of any rule of law relating to its application or misuse of power. The Court of First Instance may not, however, annul or alter that decision on grounds which come into existence subsequent to its adoption.

(see paras 54-55)

4. There is genuine use of a trade mark where the mark is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services; genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark. When assessing whether use of the trade mark is genuine, regard must be had to all the facts and circumstances relevant to establishing whether the commercial exploitation of the mark in the course of trade is real, particularly whether such use is viewed as warranted in the economic sector concerned to maintain or create a share in the market for the goods or services protected by the mark, the nature of those goods or services, the characteristics of the market and the scale and frequency of use of the mark.

The question whether use is sufficient to maintain or create market share for the goods or services protected by the mark thus depends on several factors and on a case-by-case assessment.

It follows that it is not possible to determine a priori , and in the abstract, what quantitative threshold should be chosen in order to determine whether use is genuine or not. A de minimis rule, which would not allow the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) or, on appeal, the Court of First Instance, to appraise all the circumstances of the dispute before it, cannot therefore be laid down. Thus, when it serves a real commercial purpose, even minimal use of the trade mark can be sufficient to establish genuine use.

(see paras 70-72)