14.9.2015

Official Journal of the European Union

C 302/17

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(Case C-295/15 P)

(2015/C 302/22)

Language of the case: German

Parties

Appellant: Matratzen Concord GmbH (represented by: I. Selting, Rechtsanwalt)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), KBT & Co. Ernst Kruchen agenzia commerciale sociétá in accomandita

Form of order sought

The appellant claims that the Court of Justice should:

—set aside the decision of the Sixth Chamber of the General Court of 16 April 2015 in Case T-258/13 concerning the cancellation of the Community trade mark 281 86 80 ‘Arktis’ due to lack of genuine use;

—order the respondent to pay the costs of the proceedings including the costs incurred in the course of the proceedings.

Pleas in law and main arguments

The appellant alleges the following errors of law in the decision of the General Court:

The General Court wrongly took into account the sales figures of the company Breiding in favour of the contested mark. The number of items sold by the company Breiding during the period at issue from 2006 to 2009 should not have been taken into account.

When examining the genuine use, the General Court wrongly took into account not the goods marked ‘Arktis’ but the goods marked ‘Arktis Line’ and took the view that the addition ‘Line’ is exclusively descriptive.

In addition, the General Court exercised its discretion wrongly in finding that there was genuine use of the contested mark although the trade mark proprietor’s goods turnovers were extremely small.

Lastly, the General Court did not have regard to the fact that the genuine use at issue concerns ‘bedding’ and ‘bed blankets’. However, the trade mark proprietor submitted evidence only of use of the mark for ‘bed blankets’ and not for other bedding such as pillows and mattresses. For this reason at least ‘bedding’ must be cancelled from the mark.

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