Judgment of the General Court (Third Chamber) of 28 May 2020 –

Diesel v EUIPO – Sprinter megacentros del deporte (Representation of a curved and angled line)

(Case T‑615/18)

(EU trade mark – Opposition proceedings – Application for an EU figurative mark representing a curved and angled line – Earlier EU figurative mark representing the capital letter D and earlier international figurative mark (D) representing an angled line – Relative ground for refusal – Genuine use of the earlier mark – Article 42(2) of Regulation (EC) No 207/2009 (now Article 47(2) of Regulation (EU) 2017/1001))

1. EU trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the earlier mark – Genuine use – Concept – Interpretation taking account of the rationale of Article 42(2) and (3) of Regulation No 207/2009 (Council Regulation No 207/2009, Recital 10 and Art. 42(2) and (3); Commission Regulation No 2868/95, Art. 1, rule 22(3)) (see paras 29, 30)

2. EU trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the earlier mark – Genuine use – Concept – Criteria for assessment (Council Regulation No 207/2009, Art. 42(2) and (3); Commission Regulation No 2868/95, Art. 1, rule 22(3)) (see paras 31, 32, 71, 82)

3. EU trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the earlier mark – Genuine use – Concept – Criteria for assessment – Not possible to determine a quantitative threshold regarding minimal use (Council Regulation No 207/2009, Art. 42(2) and (3); Commission Regulation No 2868/95, Art. 1, rule 22(3)) (see para. 33)

4. EU trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the earlier mark – Genuine use – Concept – Criteria for assessment – Requirement for solid and objective evidence (Council Regulation No 207/2009, Art. 42(2) and (3); Commission Regulation No 2868/95, Art. 1, rule 22(3)) (see paras 34-36)

5. EU trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the earlier mark – Probative value of the evidence – Criteria for assessment (Council Regulation No 207/2009, Art. 42(2)) (see paras 57, 61, 72, 73, 75)

6. EU trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the earlier mark – Partial use – Effect (Council Regulation No 207/2009, Art. 42(2) and (3); Commission Regulation No 2868/95, Art. 1, rule 22(3)) (see para. 88)

7. EU trade mark – Appeals procedure – Action before the EU Courts – Power of the General Court to alter the contested decision – Limits (Council Regulation No 207/2009, Art. 65(3)) (see para. 116)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 3 August 2018 (Case R 2657/2017-5), relating to opposition proceedings between Diesel and Sprinter megacentros del deporte.

Operative part

The Court:

1. Annuls the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 3 August 2018 (Case R 2657/2017-5) in so far as it concerns the earlier mark No 583708 with regard to ‘men and women’s denim jeans’ and ‘footwear’ in Class 25;

2. Dismisses the action as to the remainder;