EN Official Journal of the European Union C 245/5

Appeal brought on 17 June 2013 by Peek & Cloppenburg KG against the judgment of the General Court (Fifth Chamber) delivered on 18 April 2013 in Case T-507/11 Peek & Cloppenburg v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-326/13 P)

2013/C 245/08

Language of the case: German

Parties

Appellant: Peek & Cloppenburg KG (Düsseldorf, Germany) (represented by: P. Lange, Rechtsanwalt)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Peek & Cloppenburg KG (Hamburg, Germany)

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the General Court of the European Union of 18 April 2013 in Case T-507/11;

— annul the decision of the First Board of Appeal of OHIM of 28 February 2011 in Case R 262/2005-1;

— order OHIM and Peek & Cloppenburg KG (Hamburg) to pay the costs.

Pleas in law and main arguments

The appellant pleads an infringement of Article 8(4) of Regulation No 207/2009 (1) through misinterpretation of the criterion ‘confers … the right to prohibit the use of a subsequent trade mark’.

Contrary to what the General Court held, it is not possible to proceed on the basis that the provision requires solely that the right asserted be of more than local significance. The criterion at issue is to be interpreted as limiting further the category of signs of more than local significance that can be relied upon in opposition. This interpretation is that the national right at issue must confer upon its proprietor the right to prohibit the use of a subsequent trade mark in the entire territory of the Member State in which the right originates.

This view is supported by the significance of the opposition procedure in respect of a Community trade mark application, by the provisions of Articles 110 and 111 of Regulation No 207/2009 and by the way in which the criterion in Article 4(4)(b) of Directive 2008/95/EC, (2) which is identical to that in Article 8(4) of Regulation No 207/2009, is understood.

The German legislature, interpreting Article 4(4)(b) of Directive 2008/95/EC correctly, transposed that provision into national law so as to mean that the right at issue must confer upon its proprietor the power to prohibit the use of a subsequent trade mark in the entire territory of the Federal Republic of Germany. The interpretation of the criterion ‘confers … the right to prohibit the use of a subsequent trade mark’ is relevant to the dispute.

In the alternative, the appellant pleads an infringement of Article 8(4) of Regulation No 207/2009 through misinterpretation of the concept ‘of more than mere local significance’ by the General Court. It relies in this regard on the significance of the opposition procedure, on the purpose of limiting the category of national signs that can be relied upon in opposition, on the connection with the provisions of Articles 110 and 111 of Regulation No 207/2009, and on Article 4(4)(b) of Directive 2008/95/EC.

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

(2) Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (OJ 2008 L 299, p. 25).