Source: EURLEX
Language: en
Format: md

Case T‑386/15

(publication by extracts)

Jordi Nogues, SL

v

European Union Intellectual Property Office

(EU trade mark — Opposition proceedings — Application for EU figurative mark BADTORO — Earlier EU figurative and word marks TORO — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Similarity of the goods and services — Article 8(1)(b) of Regulation 207/2009/EC — Suspension of the administrative proceedings — Rule 20(7)(c) of Regulation (EC) No 2868/95)

Summary — Judgment of the General Court (Seventh Chamber), 20 September 2017

EU trade mark — Appeals procedure — Appeal to a Board of Appeal — Stay of proceedings — Conditions

(Commission Regulation No 2868/95, Art. 1, Rules 20(7)(c), and 50(1))

According to the case-law, the Board of Appeal’s discretion as to whether or not to suspend proceedings is broad. Suspending proceedings remains optional for the Board of Appeal, which will do so only if it considers it appropriate. Proceedings before the Board of Appeal are therefore not automatically suspended as a result of a request for suspension made by a party before it.

The fact that the Board of Appeal has a broad discretion to suspend proceedings before it does not mean that the assessment of that discretion falls outside the scope of judicial review by the Courts of the European Union. That fact does, however, restrict judicial review on the merits to ensuring that there is no manifest error of assessment or misuse of powers.

In that regard, it follows from the case-law that, even if it were established that an action was pending before a national court in which the earlier trade mark on which a contested decision was based was under challenge, that fact would not be a sufficient basis, in itself, for categorising the Board of Appeal’s refusal to suspend proceedings as a manifest error of assessment. In exercising its discretion with respect to the suspension of proceedings, the Board of Appeal must observe the general principles governing procedural fairness within a European Union governed by the rule of law. It follows that, in exercising that discretion, the Board of Appeal must take into account not only the interests of the party whose application for an EU mark is being contested, but also those of the other parties. The decision whether or not to suspend must follow upon a balancing of the competing interests.

(see paras 21-23)

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