Action brought on 5 December 2019 — e*Message Wireless Information Services v EUIPO — Apple (e*message)

(Case T-834/19)

(2020/C 45/72)

Language in which the application was lodged: German

Parties

Applicant: e*Message Wireless Information Services GmbH (Berlin, Germany) (represented by: A. Hotz, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Apple Inc. (Cupertino, California, United States)

Details of the proceedings before EUIPO

Proprietor of the trade mark at issue: Applicant

Trade mark at issue: EU figurative mark e*message in yellow-orange and black — EU trade mark No 1 548 619

Procedure before EUIPO: Cancellation proceedings

Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 10 September 2019 in Case R 2454/2018-5

Form of order sought

The applicant claims that the Court should:

— annul the contested decision;

— annul Decision No 13 800 C of EUIPO’s Cancellation Division of 25 October 2018;

— reject the application for a declaration of invalidity of EU trade mark No 1 548 619 of 22 September 2016;

— order EUIPO and the intervener, should it intervene, to pay the costs.

Pleas in law

— Infringement of Article 59(1)(a) of Regulation (EU) 2017/1001 of the European Parliament and of the Council, in conjunction with Article 7 thereof, and of the first sentence of Article 2 TEU in conjunction with Article 1(2) TFEU (principle of the rule of law and principle that actions of authorities must have a legal basis);

— Infringement of Article 59(1)(a) of Regulation (EU) 2017/1001 of the European Parliament and of the Council, in conjunction with Article 7(1)(b) and (c) thereof, by reason of an error of law in the application of the present interpretation of the rule in Article 7(1)(b) and (c) of Regulation (EU) 2017/1001 of the European Parliament and of the Council to the time of filing of the application for registration of the contested EU trade mark and on account of a lack of factual findings concerning the interpretation of Article 7(1)(b) and (c) of Council Regulation (EC) No 207/2009 at the time of filing of the application for registration;

— Infringement of Article 59(1)(a) of Regulation (EU) 2017/1001 of the European Parliament and of the Council, in conjunction with Article 7(1)(c) and Article 64(5) thereof, by reason of a lack of factual findings concerning the public’s perception at the time of filing of the application for registration and excessively limited requirements of proof and the finding of an absolute ground for refusal at the time of filing of the application for registration in the case where the registration procedure took place a long time ago;

— Infringement of Article 59(1)(a) of Regulation (EU) 2017/1001 of the European Parliament and of the Council, in conjunction with Article 7(1)(c) thereof, by reason of an incorrect assessment of the figurative elements of the contested EU trade mark and a lack of factual findings concerning the time of filing of the application for registration;

— Infringement of Article 59(1)(a) of Regulation (EU) 2017/1001 of the European Parliament and of the Council, in conjunction with Article 7(1)(b) thereof, by reason of an incorrect assessment of the distinctive character and a lack of factual findings at the time of filing of the application for registration;

— Infringement of Article 17 of the Charter of Fundamental Rights of the European Union, Article 1 of Additional Protocol No 1 to the European Convention on Human Rights, in conjunction with Article 6(1) to (3) TEU and Article 2(1) TFEU and the general legal principles of the protection of legitimate expectations and of legal certainty (first sentence of Article 2 TEU) on account of an incorrect withdrawal of a lawful administrative measure conferring a benefit;