Source: EURLEX
Language: en
Format: md

Judgment of the General Court (Sixth Chamber) of 6 June 2018 –  
Glaxo Group v EUIPO — Celon Pharma (SALMEX)

(Case T‑803/16)

(EU trade mark — Invalidity proceedings — EU figurative mark SALMEX — Earlier three-dimensional national mark — Competence of the Board of Appeal to examine of its own motion whether the earlier mark had been put to genuine use — Article 64(1) and Article 76(1) of Regulation (EC) No 207/2009 (now Article 71(1) and Article 95(1) of Regulation (EU) 2017/1001))

| 1. | EU trade mark—Appeals procedure—Action before the EU judicature—Procedural role of the Office—Right of the Office, although designated as the defendant, to support the applicant’s claims—Functional independence of Boards of Appeal and their members  (Rules of Procedure of the General Court, Art. 178(2) and (3))  (see para. 20) |

| 2. | EU trade mark—Observations of third parties and opposition—Examination of the opposition—Proof of use of the earlier mark—Need to determine that question, once raised by the applicant before the decision on the opposition—Consequence  (Council Regulation No 207/2009, Art. 42(2))  (see paras 25, 26) |

| 3. | EU trade mark—Observations of third parties and opposition—Examination of the opposition—Proof of use of the earlier mark—Non-submission of plea based on insufficient proof of genuine use  (Council Regulation No 207/2009, Art. 42(2))  (see paras 27, 32) |

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 31 August 2016 (Case R 2108/2015-4) relating to invalidity proceedings between Glaxo Group Ltd and Celon Pharma.

Operative part

The Court:

| 1. | Annuls the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 31 August 2016 (Case R 2108/2015-4); |

| 2. | Orders EUIPO to bear its own costs and those incurred by Glaxo Group Ltd during the proceedings before the General Court; |

| 3. | Orders Celon Pharma S.A. to bear its own costs relating to the proceedings before the General Court. |

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