CELEX: 62018CO0118(01)
Language: en
Date: 2018-12-13 00:00:00
Title: Rectification order of 13 December 2018.#Hochmann Marketing GmbH, anciennement Bittorrent Marketing GmbH v European Union Intellectual Property Office.#Rectification order.#Case C-118/18 P.

ORDER OF THE COURT (Ninth Chamber)
13 December 2018 (*)
(Rectification order)
In Case C‑118/18 P-REC,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 12 February 2018,

Hochmann Marketing GmbH, formerly Bittorrent Marketing GmbH, established in Neu-Isenburg (Germany), represented by C. Hoppe, Rechtsanwalt,
appellant,
the other parties to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

BitTorrent Inc., established in San Francisco (United States),
intervener at first instance,
THE COURT (Ninth Chamber),
composed of C. Lycourgos, President of the Tenth Chamber, acting as President of the Ninth Chamber, E. Juhász and C. Vajda (Rapporteur), Judges,
Advocate General: J. Kokott,
Registrar: A. Calot Escobar,
after hearing the Advocate General,
makes the following

Order

1        On 28 June 2018, the Court (Ninth Chamber) made the order in Hochmann Marketing v EUIPO (C‑118/18 P, not published, EU:C:2018:522).

2        That order contains an obvious slip and a clerical error which it is appropriate for the Court to rectify of its own motion, in accordance with Article 154(1) of the Rules of Procedure of the Court, which applies to the procedure on appeal under Article 190(1) of those rules.
On those grounds, the Court (Ninth Chamber) hereby orders:
1.      The heading preceding paragraph 20 of the order of 28 June 2018, Hochmann Marketing v EUIPO (C‑118/18 P, EU:C:2018:522), shall be rectified as follows:

‘Third ground of appeal, concerning the failure to take into account a judgment of the Kammergericht Berlin (Higher Regional Court, Berlin, Germany)’.

2.      Paragraph 22 of that order shall be rectified as follows:

‘In the assessment of the genuine use of an EU trade mark, the decision of a national court concerning the genuine use of a national trade mark can neither bind EUIPO nor replace EUIPO’s assessment of the evidence, and that is the case even if that national trade mark is identical to the EU trade mark. The judgment of the Kammergericht Berlin (Higher Regional Court, Berlin) does not therefore constitute a new item of evidence of genuine use of the EU trade mark that EUIPO was obliged to take into account.’

3.      Paragraph 25 of the order, in the version in the language of the case, shall be rectified as follows:

‘However, the appellant does not explain to what extent the findings of the General Court are vitiated by an error of law but, as in its action before the General Court, the appellant challenges only the Board of Appeal’s assessment of the evidence. Given that, in an appeal, the jurisdiction of the Court of Justice is confined to a review of the findings of law on the pleas argued at first instance, this ground of appeal is manifestly inadmissible.’

4.      The original of this order shall be annexed to the original of the rectified order. A note of this order shall be made in the margin of the original of the rectified order.

Luxembourg, 13 December 2018.

A. Calot Escobar
 
C. Lycourgos

Registrar
 
      Acting President

*      Language of the case: English.