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Case C-751/22 P: Appeal brought on 8 December 2022 by Shopify Inc. against the judgment of the General Court (Ninth Chamber) delivered on 12 October 2022 in Case T-222/21, Shopify v EUIPO — Rossi and Others (Shoppi)
ECLI:EU:UNKNOWN:62022CN0751
62022CN0751
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30.5.2023
Official Journal of the European Union
C 189/6
(Case C-751/22 P)
(2023/C 189/08)
Language of the case: English
Parties
Appellant: Shopify Inc. (represented by: S. Völker and M. Pemsel, Rechtsanwälte)
Other parties: European Union Intellectual Property Office (EUIPO), Massimo Carlo Alberto Rossi, Salvatore Vacante and Shoppi Ltd.
Form of order sought
The appellant claims that the Court should:
—annul the judgment under appeal;
—annul the decision of the Second Board of Appeal of EUIPO of 18 February 2021 (Case R 785/2020-2) (the contested decision);
—order EUIPO and the interveners to pay the costs, including the costs for the proceedings before the General Court.
Plea in law and main arguments
In support of the appeal, the appellant relies on a single plea in law, namely infringement of Article 53(1)(a) of Regulation (EC) No 207/2009 (1) as amended by Regulation (EU) 2015/2424 (2) in conjunction with Article 8(1)(b) hereof.
The Appellant puts forth the following arguments.
The General Court disregarded the evidence of enhanced distinctiveness submitted by the appellant for the United Kingdom for the reason that the contested decision was rendered after the end of the transition period stipulated in Article 127 of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (3). The General Court held that the appellant must be able to prohibit the use of later mark not only on its application date but also on the date of the decision of the Board of Appeal. Thus, the General Court held, essentially, that the conditions of a relative ground of refusal in invalidity proceedings must exist at the filing or priority date of the contested trademark and on the date of the decision of EUIPO (i.e. the Cancellation Division or the Board of Appeal).
(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
(2) Regulation (EU) 2015/2424 of the European Parliament and of the Council of 16 December 2015 amending Council Regulation (EC) No 207/2009 on the Community trade mark and Commission Regulation (EC) No 2868/95 implementing Council Regulation (EC) No 40/94 on the Community trade mark, and repealing Commission Regulation (EC) No 2869/95 on the fees payable to the Office for Harmonization in the Internal Market (Trade Marks and Designs) (OJ 2015 L 341, p. 21).
(3) OJ 2020 L 29, p. 7.