EN Official Journal of the European Union C 282/17

Appeal brought on 7 May 2014 by Lidl Stiftung & Co. KG against the judgment of the General Court (Ninth Chamber) delivered on 27 February 2014 in Case T-226/12: Lidl Stiftung & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-224/14 P)

2014/C 282/23

Language of the case: English

Parties

Appellant: Lidl Stiftung & Co. KG (represented by: M. Wolter, M. Kefferpütz, A. K. Marx, Rechtsanwälte)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Form of order sought

The appellant claims that the Court should:

— annul the Judgement of the General Court of 27 February 2014 (Case T-226/12);

— in the event that the appeal is declared well founded, annul the decision of the First Board of Appeal of 21 March 2012 (R 2380/2010-1) as sought in the proceedings before the General Court;

— order the OHIM as defendant in the proceedings before the General Court to pay the costs of the proceedings before the General Court and of the appeal proceedings.

Pleas in law and main arguments

With the Application for Appeal, Lidl Stiftung & Co. KG raises three pleas in law against the contested judgement:

1) infringement of Art. 42 (2) and (3) CTMR (1) (2) and Rule 22 (3) and (4) of CTMIR (3) (4) in conjunction with Art. 15 (1) CTMR as the General Court misinterpreted the requirements for proof of genuine use of the opposition mark within the meaning of these provisions;

2) infringement of Art. 15 (1) (a) CTMR in conjunction with Art. 42 (2) and (3) CTMR as the General Court misinterpreted the requirements for considering the use of the opposition mark in a different form than the registered to constitute genuine use within the meaning of Art. 15 (1) CTMR;

3) infringement of Art. 8 (1) (b) CTMR as the General Court misinterpreted the requirements on the assessment of the likelihood of confusion.

The main arguments can be summarized as follows:

Regarding plea (1), the General Court erred in law in finding that the Board of Appeal correctly considered three undated photographs together with some invoices as solid and objective evidence, sufficient for proving genuine use of the opposition mark, particularly with regard to the nature of use.

Regarding plea (2), the General Court disregarded the exceptional character of Art. 15 (1) (a) CTMR that requires, for reasons of legal certainty and predictability, strict and narrow interpretation, an assessment of all elements of the mark in its registered form. The General Court thus erred in law when confirming the Board of Appeal’s finding that the used form of the mark had constituted genuine use as it did not alter the distinctive character of the opposition mark in its registered form as the Board of Appeal did not take into consideration all elements of the opposition mark.

Regarding plea (3), the General Court misinterpreted Art. 8 (1) (b) CTMR as, in its assessment of the Board of Appeal’s findings on the similarity of the signs and the likelihood of confusion, it did not take adequately into consideration that, firstly, in the case at hand the degree of attention of the relevant public is quite high, secondly, the average consumer normally perceives a mark as a whole and does not tend to analyse its various details and, thirdly, it is only if all other components of the mark are negligible that the assessment of the similarity of signs can be carried out solely on the basis of the dominant element. If these aspects had been taken into consideration correctly, a likelihood of confusion could not have been found.

As the contested judgement is, thus, not in accordance with the provisions of the CTMR, Lidl Stiftung & Co. KG requests its annulment.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark

(2) OJ L 78, p. 1

(3) Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark

(4) OJ L 303, p. 1