28.10.2019

EN

Official Journal of the European Union

C 363/24

(Case T-587/19)

(2019/C 363/32)

Language in which the application was lodged: Spanish

Parties

Applicant: Frutas Tono, SL (Benifairo de la Valldigna, Spain) (represented by: A. Cañizares Doménech, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Agrocazalla, SL (Lorca, Spain)

Details of the proceedings before EUIPO

Applicant for the trade mark at issue: Applicant before the General Court

Trade mark at issue: Application for the European Union figurative mark Marién — Application for registration No 15 146 021

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 25 June 2019 in Case R 171/2018-4

Form of order sought

The applicant claims that the Court should:

—annul the contested decision and, accordingly, set aside the costs order made against the applicant before the Opposition Division and the Board of Appeal and, instead, make a further order granting suspension of the appeal proceedings before EUIPO until such time as that Office gives a decision on the declaration of invalidity sought in respect of the opposing mark; or, in the alternative,

—if, when judgment is given by the Court, the opposing mark has already been declared invalid by EUIPO, annul, in addition, the decision of the Board of Appeal, on the ground that it failed duly to analyse the effect on the compatibility of registration of the signs at issue, when it ought to have stayed the proceedings of its own motion; or, in the alternative,

—in the event that the Court does not find as above, declare that there is no likelihood of confusion between the marks at issue, for all of the reasons argued previously; and

—order EUIPO to pay the costs.

Pleas in law

—Priority right of the proprietor of the contested mark over the Spanish national marks 1798380 MARIEN, applied for on 12 January 1994 for Class 39; 1800302 MARIEN, applied for on 25 January 1994 for Class 35; and 2222325 MARIEN, applied for on 23 March 1999 for Class 31;

—Infringement of Article 8(1)(a) of Regulation (EU) 2017/1001.