23.12.2019

EN

Official Journal of the European Union

C 432/71

(Case T-739/19)

(2019/C 432/82)

Language in which the application was lodged: Spanish

Parties

Applicant: Productos Jamaica (Algezares, Spain) (represented by: I. Temiño Ceniceros, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Alada 1850, SL (Barberá del Vallés, Spain)

Details of the proceedings before EUIPO

Proprietor of the trade mark at issue: Applicant before the General Court

Trade mark at issue: Figurative mark flordeJamaica — European Union trade mark No 9 003 989

Procedure before EUIPO: Invalidity proceedings

Contested decision: Decision of the First Board of Appeal of EUIPO of 24 July 2019 in the Joined Cases R 1431/2018-1 and R 1440/2018-2

Form of order sought

The applicant claims that the Court should:

—declare the present action admissible, together with the annexes thereto;

—annul the contested decision in its entirety;

—order EUIPO and the intervener to pay the costs.

Pleas in law

—Although it does not make it possible to rely on a plea of limitation in consequence of the acquiescence alleged in these submissions, the evidence of use adduced by both parties in the invalidity proceedings which gave rise to the present action does constitute evidence of coexistence on the market of the marks at issue over time to which the defendant acquiesced, which constitutes due cause for the use of the contested mark, in addition to confirming the absence of any likelihood of confusion on the market.

—It cannot be concluded from the evidence adduced by the defendant that the earlier mark has acquired a high degree of distinctive character through the use that has been made of that mark in Spain.

—In the present case, there can be no finding of a likelihood of confusion in respect of all the goods and services covered by the contested mark and it cannot therefore be declared invalid in its entirety.