Official Journal of the European Union

C 431/9

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(Case C-400/14 P)

(2014/C 431/15)

Language of the case: English

Parties

Appellant: Basic AG Lebensmittelhandel (represented by: D. Altenburg, T. Haug, Rechtsanwälte)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Repsol YPF, SA

Form of order sought

The appellant requests that:

—The decision of the Court of Justice of the European Union (General Court) of June 26, 2014 (Case T-372/11) shall be annulled and the case shall be referred to the General Court for reapplication;

—The defendant shall bear all costs of this proceeding.

Pleas in law and main arguments

The applicant contests the General Court's interpretation of the definition of ‘distribution services’ which is — as a matter of law — a preliminary issue in the assessment of similarity of services. The applicant consequently claims that the General Court has taken an incorrect perception as the legal basis for its subsequent assessment concerning the likelihood of confusion between the trademarks at issue.

The applicant would point out that the ECJ's main function is to supply a uniform interpretation of the concept and scope of the respective services (C-418/02, paragraph 33 — Praktiker; joined cases C-414/99 to C-416/99 Zino Davidoff and Levi Strauss, paragraphs 42 and 43) and of the judgment ‘IP-Translator’ (C-307/10, June 19, 2012) whereby ‘goods and services have to be definable in an objective manner in order to fulfil the trademark's function as an indication of origin’ and asks the ECJ for a ‘sufficient precise and clear’ definition of ‘distribution services’.

In the opinion of the applicant, the service ‘distribution’ has a very narrow scope and comprises only the activities ‘transport; packaging and storage of goods’ but not ‘retail and wholesale’ services. The applicant further points out that the Court of Justice clarified in the ‘Praktiker’ judgment that the objective of ‘retail’ (class 35) is — in contrast to the services in class 39 — the sale of goods to consumers, whereas these activities consist, ‘inter alia, in selecting an assortment of goods offered for sale and in offering a variety of services aimed at inducing the consumer to conclude the transaction with the trader in question rather than with a competitor’.

The general classification of ‘distribution’ in Nice Class 39 cannot be ignored in the view of the applicant since the ECJ expressly underlined its argumentation in its Praktiker decision in consideration of the Explanatory Note of Nice Class 35 (C-418/02, paragraph 36).

Therefore the decision of the General Court must be annulled and referred back for reapplication.

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