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Case C-104/18 P: Appeal brought on 13 February 2018 by Koton Mağazacilik Tekstil Sanayi ve Ticaret AŞ against the judgment of the General Court (Second Chamber) delivered on 30 November 2017 in Case T-687/16: Koton Mağazacilik Tekstil Sanayi ve Ticaret AŞ v European Union Intellectual Property Office
ECLI:EU:UNKNOWN:62018CN0104
62018CN0104
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Official Journal of the European Union
C 152/16
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(Case C-104/18 P)
(2018/C 152/19)
Language of the case: English
Parties
Appellant: Koton Mağazacilik Tekstil Sanayi ve Ticaret AŞ (represented by: J. Güell Serra, E. Stoyanov Edissonov, lawyers)
Other parties to the proceedings: European Union Intellectual Property Office, Joaquín Nadal Esteban
Form of order sought
The appellant claims that the Court should:
—set aside the judgment under appeal;
—annul the contested decision;
—declare invalid the contested EUTM No. 9917436; and
—order Joaquín Nadal Esteban and EUIPO to pay the costs.
Pleas in law and main arguments
The General Court stated in the judgment under appeal as regards the assessment of the conditions for the application of Article 52(1)(b) of Regulation No. 207/2009 that it was apparent from the judgment of the Court of Justice of 11 June 2009, Chocoladefabriken Lindt & Sprüngli, C-529/07, EU:C:2009:361, that bad faith presupposed the existence of a likelihood of confusion and that it consequently required the goods and services at stake to be similar or identical.
The appellant claims that it does not follow from the judgment in Chocoladefabriken Lindt & Sprüngli that bad faith on the part of the applicant for registration presupposes the existence of a likelihood of confusion between the marks/signs of the parties, but that the existence of such a likelihood of confusion is just an example of factors that can be taken into account, and not a sine qua non condition for the application of Article 52(1)(b) of Regulation No. 207/2009.
The appellant thus alleges that, by finding that Article 52(1)(b) of Regulation No. 207/2009 presupposed or required the existence of a likelihood of confusion on the part of the public and thus similarity or identity in the goods and services at stake, the General Court misinterpreted Chocoladefabriken Lindt & Sprüngli and misapplied Article 52(1)(b) of Regulation No. 207/2009. It consequently erred in law.
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Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009, L 78, p. 1).
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