Source: EURLEX
Language: en
Format: md

Case T‑20/15

Henkell & Co. Sektkellerei KG

v

European Union Intellectual Property Office

‛EU trade mark — Opposition proceedings — Application for the EU word mark PICCOLOMINI — Earlier EU word mark PICCOLO — No genuine use of the earlier mark — Article 42(2) of Regulation (EC) No 207/2009’

Summary — Judgment of the General Court (Ninth Chamber), 14 April 2016

1. EU trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Genuine use — Concept — Interpretation taking account of the rationale of Article 42(2) and (3) of Regulation No 207/2009

   (Council Regulation No 207/2009, Art. 42 (2) and (3))
2. EU trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Genuine use — Criteria for assessment — Requirement of solid and objective evidence

   (Council Regulation No 207/2009, Art. 42(2) and (3); Commission Regulation No 2868/95, Art. 1, Rule 22(3))
3. EU trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Probative value of the evidence — Criteria for assessment

   (Council Regulation No 207/2009, Art. 42(2) and (3))
4. EU trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Use of the mark as a trade mark — Word mark PICCOLO

   (Council Regulation No 207/2009, Art. 42(2))
5. EU trade mark — Appeals procedure — Action before the EU judicature — Jurisdiction of the General Court — Re-evaluation of the facts in the light of evidence produced for the first time before it — Not included

   (Council Regulation No 207/2009, Art. 65)
6. EU trade mark — Appeals procedure — Action before the EU judicature — Legality of the decision of a Board of Appeal — Account taken, for the purposes of applying EU law, of national legislation, case-law or academic legal writing — Lawfulness

   (Council Regulation No 207/2009, Art. 65)

1. See the text of the decision.

   (see paras 19, 21)
2. See the text of the decision.

   (see paras 20, 22, 23)
3. In order to assess the evidential value of a document, regard should be had first and foremost to the credibility of the account it contains. It is then necessary to take account, in particular, of the person from whom the document originates, the circumstances in which it came into being, the person to whom it was addressed and whether, on its face, the document appears sound and reliable. The statutory declaration within the meaning of Article 78(1)(f) of Regulation No 207/2009 on the EU trade mark is not sufficient in itself and is merely an indication which needs to be confirmed by other evidence.

   (see para. 37)
4. See the text of the decision.

   (see paras 42-51)
5. See the text of the decision.

   (see para. 53)
6. Neither the parties nor the Court itself can be precluded from drawing on the case-law of the Courts of the European Union, national case-law or international case-law for the purposes of interpreting EU law. That possibility of referring to national decisions is not covered by the case-law according to which the purpose of actions brought before the Court is to review the legality of decisions of the Boards of Appeal in the light of the evidence submitted by the parties before the latter, since the purpose is not to criticise the Boards of Appeal on the ground that they failed to take the factual aspects of a specific national decision into account, but rather to cite decisions in support of a plea alleging that the Boards of Appeal infringed a provision of Regulation No 207/2009.

   (see para. 55)

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