Official Journal of the European Union

C 5/40

(Case T-802/16) (<span class="super note-tag">1</span>)

((EU trade mark - Revocation proceedings - EU word mark FEMIBION - Partial revocation - Article 51(1)(a) of Regulation (EC) No 207/2009 (now Article 58(1)(a) of Regulation (EU) 2017/1001) - Proof of genuine use of the mark - Classification of the goods in respect of which genuine use has been shown))

(2018/C 005/54)

Language of the case: English

Parties

Applicant: Endoceutics, Inc. (Quebec, Canada) (represented by: M. Wahlin, lawyer)

Defendant: European Union Intellectual Property Office (represented by: M. Vuijst and A. Folliard-Monguiral, Agents)

Other party to the proceedings before the Board of Appeal of EUIPO: Merck KGaA (Darmstadt, Germany) (represented by: M. Best, U. Pfleghar and S. Schäffner, lawyers)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 14 July 2016 (Case R 1608/2015-1), concerning revocation proceedings between Endoceutics and Merck.

Operative part of the judgment

The Court:

1.Annuls the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 14 July 2016 (Case R 1608/2015-1), in so far as it maintained registration of the EU trade mark for ‘pharmaceutical preparations for immune system support, for menopause, for menstruation, for treatment and management of pregnancy, for the prevention, treatment and management of stress, for the prevention, treatment and management of stress [caused by] ill-balanced or deficient nutrition’;

2.Dismisses the action as to the remainder;

3.Orders Merck KGaA to pay, in addition to its own costs, half of the costs incurred by Endoceutics Inc. before the General Court and the costs incurred by Endoceutics before the Board of Appeal;

4.Orders Endoceutics to bear half of its own costs;

5.Orders EUIPO to bear its own costs.

(<span class="super">1</span>) OJ C 22, 23.1.2017.