EN Official Journal of the European Union C 419/28

Appeal brought on 28 July 2016 by mobile.de GmbH, formerly mobile.international GmbH, against the judgment of the General Court (Eighth Chamber) delivered on 12 May 2016 in Joined Cases T-322/14 and T-325/14, mobile.international v EUIPO — Rezon

(Case C-418/16 P)

(2016/C 419/37)

Language of the case: German

Parties

Appellant: mobile.de GmbH, formerly mobile.international GmbH (represented by: T. Lührig, Rechtsanwalt)

Other parties to the proceedings: European Union Intellectual Property Office, Rezon OOD

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the Eighth Chamber of the General Court of 12 May 2012 in Joined Cases T-322/14 and T-325/14;

— order the European Union Intellectual Property Office to pay the costs of the proceedings.

Grounds of appeal and main arguments

The judgment under appeal infringes Article 57(2) of Regulation (EC) No 207/2009, (1) read in conjunction with Rules 22(2) and 40(6) of Regulation (EC) No 2868/95, (2) because it interprets the well-defined concept of ‘proof of use’ in Article 57(2) of Regulation No 207/2009 and in Rules 22(2) and 40(6) of Regulation No 2868/95 differently, contrary to the generally recognised interpretative principles of legal methodology. The divergent interpretation of the same term in Regulation No 207/2009 and in Regulation No 2868/95 is incompatible with the principles of legal certainty and legal clarity. Moreover, the General Court disregards the fact that Rules 40(6) and 22(2) of Regulation No 2868/95 exclude a late submission of evidence of use in cancellation proceedings and that EUIPO has no discretion in that regard. Article 57(1) of Regulation No 207/2009 is not applicable and EUIPO has not made use of it, with the result that the decision of the Boards of Appeal and of the General Court cannot be based on it.

The judgment under appeal also infringes Article 76(2) of Regulation No 207/2009 inasmuch as the General Court erred in law by assuming that Article 76(2) of Regulation No 207/2009 was applicable, even though Rules 40(6) and 22(2) of Regulation No 2868/95 preclude its applicability to invalidity proceedings due to the systematic interpretation of Rule 50(1)(3) of Regulation No 2868/95.

Moreover, the requirements of Article 76(2) of Regulation No 207/2009 were not satisfied because the intervener did not at any point in the proceedings put forward any legitimate reason for the late submission of the invoices that had been available to it from the outset. The General Court therefore incorrectly applied Article 76(2) of Regulation No 207/2009, because the stage of the proceedings reached and the surrounding circumstances already meant that no account could be taken of the evidence that had been submitted late. In addition, the General Court distorted the facts by wrongly setting out the factual background, with the result that the invoices submitted at the appeal stage did not constitute ‘additional’ or ‘clarifying’ evidence in that regard.

The General Court did not examine either the phonetic or the conceptual differences between the signs actually used and, on the whole, did not base itself on the overall impression of the signs, but rather took into account only individual elements, therefore incorrectly applying Article 15(1)(a) of Regulation No 207/2009.

The General Court took into account manifestly irrelevant evidence, even though that evidence was undated or fell outside the relevant period. By doing so, the General Court incorrectly applied Article 57(2) of Regulation No 207/2009, read in conjunction with Rule 22(3) and (4) of Regulation No 2868/95.

The General Court erred in law in assuming that it was not required to examine the objection of abuse of law. The General Court failed entirely to examine the objection of prescription.

Finally, the judgment under appeal infringes Article 64(1) of Regulation No 207/2009 since the General Court disregarded the fact that the Boards of Appeal ought logically to have set aside and remitted the decisions of the Cancellation Division only in respect of the services consisting of ‘advertising related to vehicles’ and, with regard to the remaining services in respect of which use had not been proved, ought to have given a final decision and ought to have expressed the partial rejection of the requests for cancellation on the ground of absence of proof of use by way of a ruling capable of having legal force.

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

(2) Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).