Source: EURLEX
Language: en
Format: md

Case C‑482/15 P

Westermann Lernspielverlage GmbH

v

European Union Intellectual Property Office (EUIPO)

‛Appeal — EU trade mark application — Figurative mark containing the word elements ‘bambino’ and ‘lük’ — Opposition proceedings — Earlier EU figurative mark containing the word element ‘bambino’ — Partial refusal of registration — Revocation of the earlier mark on which the opposition was based — Letter from the applicant informing the General Court of that revocation — Refusal of the General Court to add that letter to the case file — Failure to state reasons’

Summary — Judgment of the Court (Tenth Chamber), 26 October 2016

1. EU trade mark — Appeals procedure — Action before the EU judicature — Jurisdiction of the General Court — Review of the lawfulness of decisions of the Boards of Appeal — Annulment or variation for reasons appearing after judgment was delivered — Precluded — Taking into account the EUIPO decision revoking the earlier mark which formed the basis for the opposition, adopted subsequent to the decision of the Board of Appeal on the opposition — Not permissible

   (Council Regulation No 207/2009, Arts 55(1) and 65(2))
2. Appeal — Grounds — Incorrect assessment of the facts and evidence — Inadmissibility — Review by the Court of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted

   (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.)

1. Under Article 65(2) of Regulation No 207/2009 on the European Union trade mark, the General Court may annul or alter a decision of a Board of Appeal of the European Union Intellectual Property Office only ‘on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaty, of [that] Regulation or of any rule of law relating to their application or misuse of power’. It follows that the General Court may annul or alter a decision against which an action has been brought only if, at the date on which that decision was adopted, it was vitiated by one of those grounds for annulment or alteration. The General Court may not, however, annul or alter that decision on grounds which come into existence subsequent to its adoption.

   In view of those considerations, and insofar as the actual date of revocation of the earlier mark which formed the basis for the opposition to the registration of the mark applied for is subsequent to the decision of the Board of Appeal on the opposition, the General Court is not required, during its review of the lawfulness of that decision, to take into account the EUIPO decision revoking that earlier mark.

   (see paras 27, 30)
2. See the text of the decision.

   (see paras 35, 36)

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