31.7.2017

EN

Official Journal of the European Union

C 249/41

(Case T-359/17)

(2017/C 249/56)

Language in which the application was lodged: French

Parties

Applicant: Aldo Supermarkets (Varna, Bulgaria) (represented by: C. Saettel, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Aldi Einkauf GmbH & Co. OHG (Essen, Germany)

Details of the proceedings before EUIPO

Applicant for the trade mark at issue: Other party to the proceedings before the Board of Appeal

Trade mark at issue: EU word mark ‘ALDI’ – Application for registration No 12 749 586

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 29 March 2017 in Case R 976/2016-4

Form of order sought

The applicant claims that the Court should:

—annul the contested decision;

—order EUIPO to pay the costs.

Pleas in law

—Infringement of Rule 19 of Regulation No 2868/95;

—Existence of contradictory grounds in that the Board of Appeal accepted, in paragraph 18 of the contested decision, that the opposition form contained a colour representation of the earlier mark, and, in paragraph 24 of the contested decision, that the applicant had produced a PDF file showing the colour representation of the mark, although those comments are incompatible with the finding in paragraphs 22 to 25 of the contested decision that, essentially, the applicant had failed to demonstrate the existence of its earlier mark by not providing a colour representation thereof;

—Infringement of the rights of the defence and of the principle of audi alteram partem, in that the Board of Appeal noted of its own motion the infringement of Rule 19 of the Implementing Regulation, without hearing the parties on that plea, although the principle of audi alteram partem requires the Boards of Appeal to hear the parties on any plea which they intend to raise of their own motion;

—Infringement of Article 42(2) of Regulation No 207/2009 and of Rule 22(3) and (4) of the Implementing Regulation.