Brandconcern BV v European Union Intellectual Property Office (EUIPO) and Scooters India Ltd.
Date: 2017-02-16
13


As regards the second part of the single plea in law, the General Court found, in paragraphs 42 to 44 of the judgment under appeal, that, as a result of the annulment of the contested decision as determined in the context of the first part, the Board of Appeal had to consider whether Scooters India had made use of the trade mark LAMBRETTA in respect of spare parts. The General Court took the view that the examination had to be made in accordance with the criteria set out by the Court of Justice in its judgment of 11 March 2003, Ansul (C‑40/01, EU:C:2003:145, paragraphs 40 to 43).
29


However, it is important to bear in mind, in the first place, that paragraph 61 of that judgment does not concern the proprietors of trade marks which have already been registered, but solely applicants for trade marks.
30


In the second place, in paragraph 61 of that judgment of 19 June 2012, Chartered Institute of Patent Attorneys (C‑307/10, EU:C:2012:361), the Court of Justice limited itself to specifying the requirements to which new applicants for national trade marks remain subject, who use the general indications of a class in order to identify the goods and services for which protection as a trade mark is sought. Such requirements, as the Advocate General stated in point 64 of his Opinion, help to prevent the situation in which it is not possible to determine with certainty the scope of the protection afforded by a trade mark when a trade mark applicant uses all the indications included in the heading of a class.
31


It cannot, therefore, be held that the Court of Justice, by the judgment of 19 June 2012, Chartered Institute of Patent Attorneys (C‑307/10, EU:C:2012:361), sought to question the validity of the approach set out in Communication No 4/03 as regards trade marks registered before the delivery of that judgment. Consequently, the rule set out in paragraph 61 of that judgment is not applicable to the registration of the trade mark LAMBRETTA, which took place before the delivery of that judgment.
32


Consequently, by finding, in paragraph 35 of the judgment under appeal, that, according to the approach set out in Point V of Communication No 2/12, it was appropriate for the words ‘vehicles; apparatus for locomotion by land, air or water’, corresponding to the goods mentioned under the heading of Class 12 of the Nice Agreement, featuring in the application for the trade mark LAMBRETTA, to be interpreted as seeking to protect that trade mark for all the goods in the alphabetical list of Class 12, the General Court did not commit an error in law capable of justifying setting aside the judgment under appeal.
37


The case-law of the Court of Justice clearly states that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside, and also the legal arguments specifically advanced in support of the appeal. The Court has also made it clear that a mere abstract statement of the grounds in the appeal does not satisfy the requirements set out in Article 58 of the Statute of the Court of Justice of the European Union and in Article 168(1)(d) of the Rules of Procedure of the Court of Justice. Furthermore, Article 169(2) of the Rules of Procedure specifies that the grounds of appeal and legal arguments relied on must identify precisely those points in the grounds of the decision of the General Court which are contested. An appeal that does not have such characteristics cannot be the subject of a legal assessment which would allow the Court of Justice to exercise its function and to carry out its review of legality (judgment of 7 November 2013, Wam Industriale v Commission, C‑560/12 P, not published, EU:C:2013:726, paragraphs 42 to 44).