Case C-668/17 P: Appeal brought on 28 November 2017 by Viridis Pharmaceutical Ltd against the judgment of the General Court (Second Chamber) delivered on 15 September 2017 in Case T-276/16, Viridis Pharmaceutical Ltd v European Union Intellectual Property Office (EUIPO)
Date: 2017-11-28
Institutions: Court of Justice
Subjects: EU trade mark, pharmaceutical product, registered trade mark, trade-mark law








C_2018083EN.01001003.xml










5.3.2018   


EN


Official Journal of the European Union


C 83/10





Appeal brought on 28 November 2017 by Viridis Pharmaceutical Ltd against the judgment of the General Court (Second Chamber) delivered on 15 September 2017 in Case T-276/16, Viridis Pharmaceutical Ltd v European Union Intellectual Property Office (EUIPO)
(Case C-668/17 P)
(2018/C 083/16)
Language of the case: German

Parties


Appellant: Viridis Pharmaceutical Ltd (represented by: C. Spintig, Rechtsanwalt, S. Pietzcker, Rechtsanwalt, M. Prasse, Rechtsanwältin)

Other parties to the proceedings: European Union Intellectual Property Office (EUIPO), Hecht-Pharma GmbH

Form of order sought

The appellant claims that the Court should:






1.


set aside the judgment under appeal of the Second Chamber of the General Court;










2.


refer the case back to the General Court;










3.


order EUIPO to pay the appellant’s costs;

In the alternative: order that the costs be reserved.





Grounds of appeal and main arguments

By the present appeal, the appellant claims that the General Court, in the judgment under appeal, infringed the EU trade mark Regulation (1) in several ways.
First, the appellant claims that the General Court infringed the first alternative set out in the first sentence of Article 58(1)(a) of the EU trade mark Regulation. The General Court, it submits, erred in law in assuming that use of a registered EU trade mark for a medicinal product for the purpose of preserving the rights in that trade mark can exist only where the necessary authorisation under the law relating to medicinal products has been issued. Moreover, the General Court also infringed that same rule by classifying the use of an EU trade mark in the context of a clinical study carried out in accordance with Article 8(3)(i) of Directive 2001/83/EC (2) as inherently mandatory and therefore as not constituting genuine use.
Furthermore, the appellant alleges infringement of the second alternative set out in the first sentence of Article 58(1)(a) of the EU trade mark Regulation. The General Court, it submits, erred in law in assuming that a clinical study carried out for the purposes of preparing an application for authorisation of a new medicinal product under the law governing medicinal products cannot then be used to justify the non-use of a trade mark if the clinical study was not applied until a significant amount of time had elapsed since registration of the trade mark and/or if the financial resources spent were not sufficient to enable the clinical study to be completed as rapidly as possible.


(1)  Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, 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 2001 L 311, p. 67).