EN Official Journal of the European Union C 212/11

Appeal brought on 24 March 2014 by The Sunrider Corporation against the judgment of the General Court (Third Chamber) delivered on 23 January 2014 in Case T-221/12: The Sunrider Corporation v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-142/14 P)

2014/C 212/12

Language of the case: English

Parties

Appellant: The Sunrider Corporation (represented by: N. Dontas, K. Markakis, Δικηγόροι)

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

Form of order sought

The appellant claims that the Court should:

— declare the present appeal admissible;

— set aside partially the judgment under appeal issued by the General Court of the European Union (Third Chamber) on 23 January 2014 in Case T-221/12 insofar as it rejected the 2nd Plea In Law (Infringement of Article 75 second sentence and Article 76(1) second sentence of the CTM Regulation 207/2009 (1)) and the 3rd Plea in Law (Infringement of Article 8(1)(b) of the CTM Regulation 207/2009) of the Appellant's Action dated 25 May 2012;

— refer the case back to the General Court for re-examination of the case as regards the 2nd and 3rd Pleas In Law of the Appellant's Action dated 25 May 2012 and for a fresh application of Article 8(1)(b) of the CTM Regulation 207/2009;

— order OHIM to pay the costs incurred by the appellant in the course of the present appeal proceedings before the Court of Justice of the European Union;

— order OHIM to pay the costs incurred by the appellant in the course of the proceedings at first instance before the General Court; and

— order OHIM to pay the costs necessarily incurred by the appellant in the course of the underlying administrative proceedings before the Fourth Board of Appeal of OHIM in case R2401/2010-4.

Pleas in law and main arguments

FIRST GROUND OF APPEAL: The General Court infringed Article 1(2) of Directive 2001/83/EC (2) and Article 2(1) of Regulation (EC) No 726/2004 (3) regarding the definition and scope of the concept ‘medical’. The General Court overstepped its authority by creating new legal definitions, namely, products ‘for medical use in the broad sense of the term’, and disregarded the relevant legal definitions that have been enacted by the EU legislature.

SECOND GROUND OF APPEAL: The General Court breached the right of the Appellant to be heard, due to its unjustified reliance upon a ‘well-known fact’ that was crucial to the outcome of the dispute. The General Court breached the right of the Appellant to be heard by finding, in paragraph 77 of the Judgment Under Appeal that a certain fact falls within the concept ‘well-known fact’, without supporting its finding by reference to any piece of evidence included in the case file and without any justification as to why that fact was lawfully qualified as ‘well-known’.

THIRD GROUND OF APPEAL: The General Court infringed Article 8(1)(b) of the CTM Regulation 207/2009 since it (a) carried out a limited examination and assessment as regards the similarity of herbal nutritional supplements to the goods literally mentioned in the Class Heading of Class 32 only, failing to examine in concreto whether there is any similarity of herbal nutritional supplements to the remaining goods falling within the Goods Included In Class 32, (b) distorted the content of the Contested Decision and substituted the finding and reasoning of the BOA as regards the ‘relevant public’ and (c) erred in law in the examination and assessment of the individual factors/criteria of similarity of the goods in question, in particular as regards (i) the interpretation and application of the term ‘medical’ as the main purpose of herbal nutritional supplements, (ii) the legal requirement that a ‘large part’ of manufacturers of the goods in question should be the same, (iii) the legal criterion/standard used in the comparison of the products, (iv) the dismissal of the 2nd Plea In Law of the Action as ineffective, (v) the failure to examine the factor of ‘substitutability’ and (vi) the failure to examine the nature of the goods under comparison.

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

OJ L 78, p. 1

(2) Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use

OJ L 311, p. 67

(3) Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2004 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency

OJ L 136, p. 1