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Case C-6/19 P: Appeal brought on 04 January 2019 by the European Union Intellectual Property Office against the judgment of the General Court (Seventh Chamber, Extended Composition) delivered on 24 October 2018 in Case T-447/16: Pirelli Tyre v EUIPO
ECLI:EU:UNKNOWN:62019CN0006
62019CN0006
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29.4.2019
Official Journal of the European Union
C 148/12
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(Case C-6/19 P)
(2019/C 148/12)
Language of the case: English
Parties
Appellant: European Union Intellectual Property Office (represented by: J. Ivanauskas, Agent)
Other parties to the proceedings: Pirelli Tyre SpA, The Yokohama Rubber Co. Ltd
Form of order sought
The appellant claims that the Court should:
—annul the contested judgment;
—order Pirelli Tyre SpA to pay the costs incurred by the Office.
Pleas in law and main arguments
The Office raises a single plea in law that is the infringement of Article 7(1)(e)(ii) of Regulation No 40/94 (1).
—By requiring that in order to be caught by Article 7(1)(e)(ii) of Regulation No 40/94 a sign depicting part of a product must represent, quantitatively and qualitatively, a significant part of that product, the General Court misinterpreted the conditions of this ground for refusal;
—The General Court incorrectly considered that a single groove represented in the contested sign is not capable of performing a technical function for the purposes of Article 7(1)(e)(ii) of Regulation No 40/94 because in a tyre tread it appears in combination with other elements. First, Article 7(1)(e)(ii) of Regulation No 40/94 requires to examine the technical result achieved by the feature of a product represented in the sign at issue, rather than the technical result achieved by the entire product. Secondly, for the purposes of Article 7(1)(e)(ii) of Regulation No 40/94 it is irrelevant if a single groove represented in the contested sign is combined with other elements of a tyre tread since it produces a technical result itself and contributes to the functioning of that tyre tread;
—The General Court wrongly presumed that the registration of a single groove represented in the contested sign could not prevent Pirelli’s competitors from making and marketing tyres which incorporate identical or similar grooves. Although a tyre tread consists of the combination and the interaction of various elements, at least part of the public would be able to identify different types of grooves present on a tyre tread.
Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).
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