16.1.2023
EN
Official Journal of the European Union
C 15/23
ii. having relied on its own, incorrect, case-law, in any event not applicable to the case at hand, iii. having drawn an incorrect legal conclusion from the absence of any provisions in the Withdrawal Agreement concerning oppositions brought before the end of the transition period against EU trade mark applications, iv. having disregarded the Court of Justice’s case law concerning differences between infringement and administrative/ registration proceedings and consequently erroneously holding that a. there was a conflict between the contested EU trade mark application and the earlier UK rights in the period between the filing date of the contested EU trade mark application and the end of the transition period and that b. the Applicant at first instance had, after the end of the transition period, a legitimate interest in the success of its opposition.
v. having disregarded the legislator’s will and the principle of territoriality of intellectual property rights when it held that a possible conversion of the contested EU trade mark application in national trade marks that would be identical in their scope of protection to that of the contested EU trade mark application if registered, had no bearing a. on the Applicant in first instance’s interest in the success in the opposition and b. on the existence of a conflict between the earlier UK rights and the contested EU trade mark application, vi.
having failed to give proper weight to the wording, that is, grammar and syntax, of the provision of Article 8(4) of Regulation 207/2009, to the context of the provisions of Rules 19(2)(d) and 20(1) of Regulation 2868/95 (3) concerning substantiation of the earlier rights, to the context of the provisions of Article 42 of Regulation 207/2009 concerning the proof of use defence, and in particular to the objectives of Article 8(4) of Regulation 207/2009 and essential purpose of opposition proceedings, which is to protect interests of proprietors of earlier rights in preserving the essential function of those rights against conflicts with later EU trade marks, in case the latter would be registered.
(1) (2) (3)
Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009, L 78, p. 1).
Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community2019/C 384 I/01 (OJ 2019, C 384I, p. 1).
Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995, L 303, p. 1).
Request for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 22 September 2022 — AH (Case C-608/22) (2023/C 15/25) Language of the case: German Referring court Verwaltungsgerichtshof
Parties to the main proceedings Appellant on a point of law: AH