Source: EURLEX
Language: en
Format: md

Judgment of the General Court (Sixth Chamber) of 3 May 2018 –  
Gall Pharma v EUIPO — Pfizer (Styriagra)

(Case T‑662/16)

(EU trade mark — Opposition proceedings — Application for EU word mark Styriagra — Earlier EU word mark VIAGRA — Taking unfair advantage of the distinctive character or repute of the earlier mark — Article 8(5) of Regulation (EC) No 207/2009 (now Article 8(5) of Regulation (EU) 2017/1001))

| 1. | EU trade mark—Definition and acquisition of the EU trade mark—Relative grounds for refusal—Opposition by the proprietor of an earlier identical or similar mark enjoying a reputation—Protection of well-known earlier mark extended to dissimilar goods or services—Conditions—Taking unfair advantage of the distinctive character or repute of the earlier mark—Detriment to the distinctive character or repute of the earlier mark—Criteria for assessment  (Council Regulation No 207/2009, Art. 8(5))  (see paras 15, 17) |

| 2. | EU trade mark—Definition and acquisition of the EU trade mark—Relative grounds for refusal—Opposition by the proprietor of an earlier identical or similar mark enjoying a reputation—Protection of well-known earlier mark extended to dissimilar goods or services—Conditions—Link between the marks—Criteria for assessment  (Council Regulation No 207/2009, Art. 8(5))  (see paras 16, 50, 54) |

| 3. | EU trade mark—Definition and acquisition of the EU trade mark—Relative grounds for refusal—Opposition by the proprietor of an earlier identical or similar mark enjoying a reputation—Protection of well-known earlier mark extended to dissimilar goods or services—Conditions—Taking unfair advantage of the distinctive character or repute of the earlier mark—Detriment to the distinctive character or repute of the earlier mark—Relevant public  (Council Regulation No 207/2009, Art. 8(5))  (see para. 18) |

| 4. | EU trade mark—Definition and acquisition of the EU trade mark—Relative grounds for refusal—Opposition by the proprietor of an earlier identical or similar mark enjoying a reputation—Protection of well-known earlier mark extended to dissimilar goods or services—Taking unfair advantage of the distinctive character or repute of the earlier mark—Word marks Styriagra and VIAGRA  (Council Regulation No 207/2009, Art. 8(5))  (see paras 27, 32, 45-47, 52, 60, 79) |

| 5. | EU trade mark—Definition and acquisition of the EU trade mark—Relative grounds for refusal—Opposition by the proprietor of an earlier identical or similar mark enjoying a reputation—Protection of well-known earlier mark extended to dissimilar goods or services—Conditions—Reputation of the mark in the Member State or the EU—Meaning—Criteria for assessment  (Council Regulation No 207/2009, Art. 8(5))  (see para. 37) |

| 6. | Judicial proceedings—Introduction of new pleas during the proceedings—Conditions—Pleas based on matters which have come to light in the course of the procedure  (Rules of Procedure of the General Court, Art. 84(1))  (see para. 40) |

| 7. | EU trade mark—Definition and acquisition of the EU trade mark—Relative grounds for refusal—Opposition by the proprietor of an earlier identical or similar mark enjoying a reputation—Protection of well-known earlier mark extended to dissimilar goods or services—Proof to be adduced by proprietor—Future, non-hypothetical risk of unfair advantage or damage  (Council Regulation No 207/2009, Art. 8(5))  (see para. 64) |

| 8. | EU trade mark—Definition and acquisition of the EU trade mark—Relative grounds for refusal—Opposition by the proprietor of an earlier identical or similar mark enjoying a reputation—Protection of well-known earlier mark extended to dissimilar goods or services—Conditions—Taking unfair advantage of the distinctive character or repute of the earlier mark—Criteria for assessment  (Council Regulation No 207/2009, Art. 8(5))  (see paras 65, 67) |

| 9. | EU trade mark—Definition and acquisition of the EU trade mark—Relative grounds for refusal—Opposition by the proprietor of an earlier identical or similar mark enjoying a reputation—Protection of well-known earlier mark extended to dissimilar goods or services—Conditions—Taking unfair advantage of the distinctive character or repute of the earlier mark—Burden of proof, etc.  (Council Regulation No 207/2009, Art. 8(5))  (see para. 66) |

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 13 June 2016 (Case R 724/2015-5), relating to opposition proceedings between Pfizer and Gall Pharma.

Operative part

The Court:

| 1. | Dismisses the action; |

| 2. | Orders Gall Pharma GmbH to pay the costs. |

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