EN Official Journal of the European Union C 300/10

Appeal brought on 14 April 2017 by Georgios Pandalis against the judgment delivered on 14 February 2017 in Case T-15/16 Georgios Pandalis v European Union Intellectual Property Office

(Case C-194/17 P)

(2017/C 300/14)

Language of the case: Germany

Parties

Appellant: Georgios Pandalis (represented by: A. Franke, lawyer)

Other parties to the proceedings: European Union Intellectual Property Office, LR Health & Beauty Systems GmbH

Form of order sought

The appellant claims that the Court should:

I. annul the decision of the Court of 14 February 2017 in Case T-15/16 relating to revocation proceedings brought against the EU trade mark No 001273119 ‘Cystus’;

II. annul the decision of the First Board of Appeal of EUIPO of 30 October 2015 (Case R 2839/2014-1) relating to revocation proceedings brought against the EU trade mark No 001273119 ‘Cystus’;

III. annul the decision of the Cancellation Division in the cancellation proceedings 8374 C of 12 September 2014, in so far as it revoked the EU trade mark No 001273119 ‘Cystus’ in respect of ‘food supplements not for medical purposes’ in Class 30;

IV. reject the application for a declaration of invalidity brought by LR Health & Beauty Systems GmbH in the proceedings before the Cancellation Division and the First Board of Appeal of EUIPO against the EU trade mark No 001273119 ‘Cystus’, in so far as it relates to ‘food supplements not for medical purposes’ in Class 30;

V. order the European Union Intellectual Property Office to pay the costs of the proceedings.

Pleas in law and main arguments

The appellant alleges the following errors in law in the interpretation and application of Article 51(1)(a) and (2) of the EU Trade Mark Regulation (‘EUTMR’) (1):

— First, failure to set out in the grounds the requirements of the provision which are to be examined in detail (use as a trade mark, whether use of the trade mark is genuine and whether the mark was used in respect of the goods or services protected).

— Secondly, failure to determine whether the ‘Cystus’ goods fall under the definition of food supplements for the purposes of Article 2(a) of the Food Supplements Directive.

— Thirdly, failure to classify the ‘Cystus’ goods in respect of which the mark in question was used.

— Fourthly, distortion of the facts in the determination of whether the ‘Cystus’ goods are food supplements not for medical purposes and the resulting wrong conclusion that the mark was not used with respect to food supplements not for medical purposes.

— Fifthly, there was no separate analysis of whether the (non-medical) ‘lozenges’ covered by the mark are food supplements.

In addition, the appellant alleges insufficient grounds for the finding that the ‘Cystus’ mark was not genuinely used in respect of food supplements not for medical purposes in accordance with Article 51(1)(a) and (2) EUTMR:

— First, the grounds of the judgment make it impossible to justify why the facts and evidence adduced by the appellant were not sufficient to convince the Court that the mark was used in respect of food supplements not for medical purposes.

— Secondly, it is inadmissible to base the finding that the ‘Cystus’ mark was not used in respect of the protected food supplements not for medical purposes on the ground that certain evidence contradicts that classification, without stating the goods in respect of which the mark was used instead.

— Thirdly, there is no differentiated examination of whether the (non-medical) ‘lozenges’ distributed under the mark are food supplements, and no explanation why the appropriate differentiation was not carried out.

Furthermore, the appellant alleges an error of law in the interpretation and application of Article 51(1)(a) and (2) EUTMR:

— Firstly, a mistaken examination of Article 51(1)(a) and (2) EUTMR; it was not examined whether the mark in its registered form, or in one of the forms differing from its registered form, which have no impact on their distinctive character (Article 15(1)(a) EUTMR), was not used in respect of food supplements not for medical purposes.

— Secondly, classification of the mark as descriptive for the purposes of Article 7(1)(c) EUTMR, since the appellant in reality has no possibility of using the mark in a non-descriptive manner as a trade mark in respect of its ‘Cystus’ goods, which are based on the Cistus Incanus plant, although the Court should have found in the context of the examination under Article 51(1)(a) and (2) EUTMR that the mark possessed at least average distinctive character.

In addition, the appellant alleges contradictory and insufficient reasoning relating to the finding that there was no genuine use of EU trade mark No 001273119 ‘Cystus’ in respect of food supplements not for medical purposes, in accordance with Article 51(1)(a) and (2) EUTMR:

— Firstly, a contradiction in the finding that the spelling of the mark with ‘y’ instead of ‘i’ does not suffice as proof of its use as an EU trade mark and the claim at the same time that, as a result, there were no absolute grounds for refusal under Article 7(1)(c) EUTMR.

— Secondly, a failure to state reasons in so far as the Court does not justify why the actual use of the mark does not fulfil the requirements of Article 51(1)(a) and (2) EUTMR.

Finally, the appellant alleges that the Court committed an error of law in the interpretation and application of the second sentence of Article 755 EUTMR: the Court erred in law by wrongly assuming that the Board of Appeal had not made any observations relating to the alleged absolute ground for refusal of registration under Article 7(1)(c) EUTMR.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).