26.1.2013

Official Journal of the European Union

C 26/36

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(Case C-530/12 P)

2013/C 26/69

Language of the case: English

Parties

Appellant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: P. Bullock, F. Mattina, Agents)

Other party to the proceedings: National Lottery Commission

Form of order sought

The appellant claims that the Court should:

—Annul the Judgment under Appeal,

—Order the National Lottery Commission (Applicant before the General Court) to bear the costs incurred by the Office.

Pleas in law and main arguments

The Office raises three pleas in law, namely (i) the violation of Article 76(1) CTMR, (ii) the breach of OHIM’s right to be heard and (iii) the manifest inconsistency and distortion of facts affecting the Judgment under Appeal.

The first plea is divided in two limbs. On the one hand, the General Court infringed Article 76(1) CTMR, as interpreted by the Court of Justice in relation to Article 53(2) CTMR and Rule 37 CTMIR in the Elio Fiorucci Judgment, to the extent that it relied on provisions of national law, namely Article 2704 of the Italian Civil Code, which had not been invoked by the parties and which therefore did not form part of the dispute before the Board. On the other, the General Court infringed Article 76(1) CTMR to the extent that it relied on national jurisprudence, namely the above mentioned ruling No 13912 of 14 June 2007 by the Corte Suprema di Cassazione referred to at paragraph 32 of the Judgment under Appeal, which had not been invoked by the parties and which did not form part of the dispute before the Board.

The second plea concerns the breach of OHIM’s right to be heard, to the extent that the Office was not given the opportunity to comment on procedural and substantive aspects relating to the ruling of the Corte Suprema di Cassazione. Had the Office been given this opportunity, it cannot be excluded that the reasoning and conclusion of the General Court would have been different.

The third plea concerns the manifest inconsistency and the distortion of facts affecting the reasoning and conclusion of the General Court. The Office considers that the General Court misread and distorted the analysis of the Board as well as the National Lottery Commission’s own arguments and failed to appreciate that the Board applied the correct legal standard, under Italian law, in finding that the National Lottery Commission had not adduced proof that the date of the post office stamp affixed to the 1986 Agreement was not conclusive.

Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark

OJ L 78, p. 1

Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark

OJ L 303, p. 1

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